1 Legal framework
1.1 Which laws regulate competition in your jurisdiction?
Competition in Spain is governed by Law 15/2007 on the Defence of Competition and its implementing regulation approved by Royal Decree 261/2008. Articles 101 and 102 of the Treaty on the Functioning of the European Union also apply in cases where there is an effect on trade between EU member states.
Damages actions are regulated by Directive 2014/104/EU, which was transposed into Spanish law through Royal Decree‐Law 9/2017 and which amended:
- the Law on the Defence of Competition to incorporate substantive provisions; and
- the Civil Procedure Act (1/2000) to incorporate procedural provisions.
1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?
The Spanish competition law enforcement system is based on a decentralised model, whereby the power to apply Articles 1, 2 and 3 of the Law on the Defence of Competition in matters that affect only one territory are exclusively those of the competition enforcement agency of the autonomous community concerned.
- eight autonomous communities (Catalonia, Galicia, the Valencian Community, Aragon, Castile and Leon, the Basque Country, Extremadura and Andalusia) have competition agencies with an investigative and a resolutory body;
- four autonomous communities (Murcia, the Canary Islands, Madrid and Navarre) have investigative bodies, while the Markets and Competition Commission (CNMC) is the body in charge of issuing final decisions; and
- five autonomous communities (Asturias, Castile La Mancha, the Balearic Islands, La Rioja and Cantabria) have no competition authorities.
Cases are allocated between central competition authorities and regional competition authorities based on two factors:
- the main point of connection of the case (ie, the territory affected by the investigated conduct); and
- additional specific connection points (to determine whether the investigated conduct may have an effect on the supra-regional market).
Therefore, the central competition authority (ie, the CNMC) is not hierarchically above the regional competition authorities, but rather operates in a parallel manner to them, each within its territorial jurisdiction.
2 Private claims
2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?
Both monetary and non-monetary relief can be sought. Those that have suffered harm can claim compensation for the damage actually suffered, which may encompass:
- direct damage;
- lost profits; and
In addition, claimants can seek declaratory or injunctive relief (or both).
In terms of non-monetary relief, claimants may make a request to the relevant courts for:
- the nullity (total or partial) of an agreement or clause that infringes competition law; and
- return of the payment made under it.
They may also request that the relevant courts order an undertaking that infringes competition law to:
- refrain from carrying out a specific conduct (eg, a company affected by an abusive conduct may request that the judge force the infringer to stop that conduct); or
- adopt a specific conduct.
The allegedly injured party can choose between:
- directly starting an action before the corresponding civil court in a ‘standalone' action, where the anti-competitive conduct, the existence of harm (and its quantification) and the causal link between the two must be proven; or
- waiting to exercise a civil action until the competition authority has made a pronouncement in which the anti-competitive conduct is established and then commencing a ‘follow-on' action in which only the existence of harm (and its quantification) and the causal link need be proven.
2.2 What is the legal basis for bringing a claim for breach of competition law?
Competition damages claims can be based on a breach of:
- EU law (Articles 101 and 102 of the Treaty on the Functioning of the European Union); or
- Spanish law (Articles 1 and 2 of the Law on the Defence of Competition).
As explained in question 2.1, claims can be based on a prior administrative decision proving the infringement (follow-on action) or can be directly started without it (standalone action).
Concerning the cause of the action, competition law actions can arise in contract or in tort. In contract, a claim may be brought based on the provisions on the nullity of contracts under the Civil Code; while in tort, a distinction must be made depending on the applicable regime:
- For damages claims not governed by the regime under Directive 2014/104/EU, the Spanish general tort liability provision under Article 1902 of the Civil Code is to be relied on. This regime is referred to as the ‘pre-Directive 2014/104/EU' regime.
- For damages claims governed by the regime under Directive 2014/104/EU, Article 72.1 – which provides for a specific damages action (relating to Article 71) – is to be relied on. This regime is referred to as the ‘post-Directive 2014/104/EU' regime.
3.1 Who has standing to bring a claim for breach of competition law?
Any natural or legal person that has suffered harm caused by an infringement of competition law can claim and obtain full compensation for that harm before the ordinary civil courts. This is expressly established in Article 72 of the Law on the Defence of Competition after the transposition of Directive 2014/104/EU. However, before the directive was transposed, the Spanish courts had already been applying this principle, as recognised in the judgments of the Court of Justice of the European Union (CJEU) of 20 September 2001 (Case C-453/99, Courage) and 13 July 2006 (Cases C-295/04 to C-298/04, Manfredi).
Therefore, any potentially affected party has standing to bring a claim, regardless of whether it has a contractual relationship with the infringing companies (ie, including not only direct but indirect purchasers too).
‘Umbrella effects' have also been recognised by the Provincial Court of Madrid (Section 28) in its Judgment 377/2022 of 19 May 2022 (according to the CJEU's judgment of 5 June 2014 (Case C-557/12, Kone). This confirms that claims can be brought for purchases made from undertakings that did not participate in the infringement directly or indirectly linked to the infringing undertakings.
3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?
A person domiciled outside Spain may be sued before the Spanish courts. The applicable rules vary depending on whether its domicile is in another EU member state.
If the defendant is domiciled in an EU member state, that person may be sued in Spain if the damage occurred there under Article 7.2 of EU Regulation 1215/2012 (Brussels I), which establishes that a person domiciled in one member state may be sued in another member state in matters of tort, delict or quasi-delict before the court of the place where the damage occurred or may occur.
However, if the defendant's domicile is not in an EU member state, that person may be sued in Spain under Article 22quinquies(b) of the Judiciary Act if the harmful event occurred in Spain.
For a more detailed explanation, see question 6.5.
3.3 Can a claim for breach of competition law be brought against individuals, or only companies?
As directors or legal representatives may be directly sanctioned for anti-competitive conduct committed by their company if they have intervened in it, they may also have passive standing in private competition actions.
Article 71 of the Law on the Defence of Competition expressly recognises this possibility, stating: "[T]he actions of a company are also imputable to the companies or persons that control it, except when its economic behaviour is not determined by any of them."
4 Collective actions
4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?
Spanish law does not establish a specific procedure for collective competition actions. Instead, the Civil Procedure Act includes several specific rules that regulate some of the main procedural matters (eg, standing, competence, publicity and res judicata). These rules can be used to bring competition class actions, albeit only for consumer claims.
Under Article 11 of the Civil Procedure Act, a collective action may be brought when several consumers or end users have suffered a so-called ‘harmful event'.
In the case of collective interest actions (where all members of the harmed group are, or can be, easily determined or identified), the law confers standing on:
- consumer and user associations;
- representative associations legally incorporated for the defence of consumer or user rights;
- national (or regional) consumer institutes;
- the attorney general; and
- ad hoc associations of affected individuals.
In the case of diffuse interest actions (ie, where the members of the harmed group are undetermined or difficult to determine), Spanish law confers standing exclusively on consumer and user associations considered representative, and the attorney general.
However, this regime may be affected by Directive 2020/1828 (which is yet to be transposed into Spanish law).
To date (and to our knowledge), only one private enforcement collective action has been brought in Spain, by consumer association AUSBANC against Telefónica owing to anti-competitive margin-squeeze conduct. The case was dismissed on procedural grounds (because the claimant lacked sufficient representative status, as the association was not registered with the pertinent registry). Consumer associations are also expected to promptly file collective actions relating to anti-competitive practices in the Spanish market for vehicle distribution and after-sales services.
4.2 Do collective actions proceed on an ‘opt-in' or an ‘opt-out' basis?
It is an opt-in system. Article 15 of the Civil Procedure Act foresees notice requirements and the rights of consumers to participate in the proceedings (except for cessation actions).
In collective interest actions, claimants must first inform each potentially affected consumer about their intention to bring the action. Claimants may seek pre-action discovery from defendants to determine the consumers potentially affected. Failure to fulfil this requirement may lead to the claim not being admitted or to material grounds arising against the continuation of the procedure.
Diffuse interest actions do not require claimants to first inform each consumer potentially affected. However, once the action has been filed, the court clerk will suspend the proceedings for up to two months to inform potentially affected consumers (eg, publication in a newspaper). Claimants are initially responsible for publication costs, although they may be shifted to the defendant afterwards.
After receiving notice, a consumer may decide to become involved in the proceedings (opt-in) or to start new separate proceedings.
However, in diffuse interest claims, if consumers have not joined the proceedings in accordance with the summoning of the court clerk, they will not be entitled to do so later. That said, those consumers may rely on the collective action judgment – even if they were not involved in the proceedings – to seek the direct enforcement of their rights if the class action is successful. In fact, Directive 2020/1828 expressly compels member states to ensure that consumers can benefit from this right.
4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification?
No, collective actions do not require certification.
5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction?
Unlike in other jurisdictions, the Spanish court system does not have a specific court that is competent in this matter.
Commercial courts, which are present in all provinces of Spain, have exclusive competence under the Judiciary Act to hear actions applying competition law.
6 Bringing a claim
6.1 What is the limitation period for claims for breach of competition law in your jurisdiction?
Under the pre-Directive 2014/104/EU regime (see question 2.2), the one-year limitation period of Article 1968 of the Civil Code applies. In Catalonia, a three-year limitation period applies; but several judgments have ruled that because the claim is based on a special regulation deriving from a matter of the state's exclusive competence, the one-year time limitation should still apply.
This limitation period starts to run from the date on which the claimant becomes aware of:
- the violation;
- the existence of the damage; and
- the identity of the infringer.
Under Article 1973 of the Civil Code, it can be interrupted by:
- sending an extrajudicial claim;
- starting a process to reach a settlement agreement among the parties;
- requesting a conciliation from the court (ie, to start a procedure under which the court invites the parties to reach a settlement); or
- filing a judicial claim.
For damages claims where the post-Directive 2014/104/EU regime applies, the five-year limitation period included in Article 74 of the Law on the Defence of Competition applies. This limitation period starts to run when:
- the anti-competitive behaviour has ceased; and
- the claimant knows or can reasonably be expected to know of:
- the existence of the behaviour, which constitutes a violation of competition law;
- the existence of damage; and
- the infringer's identity.
Article 74 of the Law on the Defence of Competition further provides that the five-year limitation period will be interrupted when:
- a competition authority starts an investigation or a sanctioning procedure; or
- a settlement procedure is started.
The interruption in the first scenario above ends one year after the decision adopted by the competition authority becomes final or the proceedings are otherwise terminated.
6.2 What are the formal requirements for bringing a claim for breach of competition law?
Under Article 399 of the Civil Procedure Act, proceedings are started by filing the statement of claim to the court. The facts and legal arguments on which the claim is based must be clearly explained in this statement of claim and the petitions to the court must be specified with precision, as no later extension is possible.
Generally, and under Article 265 of the Civil Procedure Act, documents proving the alleged facts of the claim and the expert report proving and quantifying the damages must be produced with the statement of claim. The same applies to the statement of defence, which must be submitted within 20 working days. However, the expert report on which the defence is based may be submitted up to five days before the preliminary court hearing.
Consequently, in Spain, preparing the case at a very early stage of the procedure is crucial, as the submission of allegations and supporting documentation is subject to very tight deadlines.
Unlike in other jurisdictions, Spanish procedural law does not have a strike-out mechanism or preliminary or mere declaratory judgments. Instead, everything is decided in the same judgment on the merits that the corresponding court issues.
6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law?
The procedural requirements for bringing a claim are:
- to have capacity to be a party (Article 6 of the Civil Procedure Act); and
- be assisted by:
- a court representative (procurador) (Article 23 of the Civil Procedure Act); and
- a legal counsel (Article 31 of the Civil Procedure Act).
As to the substantive requirements, in a follow-on action, the claimant must:
- prove the existence of harm and its causal relationship with the infringement; and
- quantify the damage, all through an expert report, as the anti-competitive conduct will already be proven by the administrative decision.
In a standalone action, the claimant must also prove the anti-competitive action (see questions 8.2 and 8.3).
6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought?
Competition damages claims can proceed while related public enforcement proceedings are pending. However, under Article 434 of the Civil Procedure Act, the court may decide to stay the term to issue the judgment if the European Commission, the Markets and Competition Commission or any regional competition authority has an ongoing investigation into the same alleged violation.
6.5 How is jurisdiction over the claim determined?
A defendant domiciled in another state may be sued before the Spanish courts if the harmful event occurred in Spain (Article 7.2 of EU Regulation 1215/2012 (Brussels I), Article 5.3 of the Lugano Convention and Article 22quinquies(b) of the Judiciary Act).
Spanish courts have jurisdiction where:
- the harmful event took place in Spain; or
- the damage was suffered in Spain.
If the claimant suffered the damage directly, it may sue before the courts of the place where the claimant is domiciled. If the claimant suffered the damage indirectly, it may sue before the courts of the place of the establishment in which it purchased the product/service.
If one of the defendants is domiciled in Spain and the others in another EU member state (or in a contracting state to the Lugano Convention), international jurisdiction in respect of all defendants is determined by the Brussels I Regulation. The Spanish courts have jurisdiction over a defendant domiciled in Spain according to Article 4.1 of the Brussels I Regulation and Article 2.1 of the Lugano Convention). If there is a strong nexus, the defendant domiciled in Spain may be used as the anchor to join the other defendants to the proceedings (Article 8.1 of the Brussels I Regulation, Article 6.1 Lugano Convention or, for co-defendants domiciled outside the European Union and the Lugano Convention, Article 22ter(3) of the Judiciary Act).
If the infringement concerns the operation of a branch opened by the defendant in Spain, jurisdiction can also be based on:
- Article 7.5 of the Brussels I Regulation;
- Article 5.5 of the Lugano Convention; or
- for co-defendants domiciled outside the European Union and the Lugano Convention, Article 22quinquies(c) of the Judiciary Act.
6.6 How is the applicable law determined?
The courts will determine the applicable law by referring to Article 6 of EU Regulation 864/2007 (Rome II).
6.7 Under what circumstances must security for costs be provided?
There are different provisions in the Civil Procedure Act under which some parties are required to provide security for costs. There is no specific provision that refers to proceedings arising from infringements of competition law, but there are some procedural issues that may arise in these proceedings that require this of the requesting party, such as:
- preliminary procedures that seek the adequate and effective filing of a later claim whose surety is forfeited if the subsequent claim is not filed within one month without sufficient justification (Article 256.3 of the Civil Procedure Act);
- disclosure of evidence (see question 7.1); or
- interim measures (see question 6.8).
6.8 Are interim remedies available in competition litigation? If so, how are they obtained?
Yes. Claimants can seek interim remedies to restrain anti-competitive conduct. Specifically, as a possible preliminary injunction, Article 727.7 of the Civil Procedure Act provides for a "court order to provisionally cease an activity, that of temporarily abstaining from performing a certain conduct or the temporary prohibition to suspend or to cease carrying out a performance that was being carried out". For example, see the precautionary injunction granted by Madrid Commercial Court 17 prohibiting FIFA and UEFA from sanctioning or banning the clubs, players and managers of the European Super League from club and national team competitions, which was subsequently revoked. Other interim remedies are also available.
Under Article 728 of the Civil Procedure Act, the requirements that must be met, and that must be proven by the requesting party, for a court to grant the interim remedy are as follows:
- Fumus boni iuris: Claimants must submit arguments and documentary evidence that, without pre-judging the merits of the case, justify a provisional judgment in their favour.
- Periculum in mora: Claimants must prove that there is an objective situation of risk, which may potentially hinder the effectiveness of a future judgment if the interim relief is not awarded.
- Bond: Claimants must post security that is sufficient to compensate, in a speedy and effective manner, any damages that the adoption of the injunction may cause to the defendant's assets.
Generally, the Spanish courts have tended to be restrictive in granting interim measures. The above requirements can also prove difficult to meet in an antitrust damages case where only monetary compensation is claimed.
7 Disclosure and privilege
7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?
Directive 2014/104/EU introduced a new disclosure regime targeted specifically at competition damages claims. This regime is established in Article 283bis of the Civil Procedure Act, which states that – subject to the fulfilment of certain requirements – claimants and defendants can request the disclosure of evidence addressed to defendants, claimants, third parties and competition authorities. This provision applies to all competition damages claims, regardless of the substantive regime.
Disclosure requests may be made before a claim has been filed or during the proceedings. The court may order the disclosure of specific evidence or relevant categories of evidence, subject to the requirement that the party seeking disclosure:
- submit a reasoned justification for the request for documents; and
- define the requested document or category of documents as precisely and as narrowly as possible based on reasonably available facts.
Disclosure can also cover evidence filed by the pertinent competition authority, subject to certain restrictions.
In making an order, the court will seek to limit disclosure to what is proportionate, considering the legitimate interests of the parties concerned and of any third parties. The party requesting disclosure is liable to cover the costs (and any damages) occasioned by that disclosure and may be required to make a deposit in advance.
Disclosure requests can also rely on other general provisions of the Civil Procedure Act:
- Article 328 (which refers to the disclosure of documents among the parties to the proceedings); and
- Article 330 (which refers to the disclosure of documents from third parties).
7.2 What rules on third-party disclosure apply in your jurisdiction?
The general regime described in the previous question also applies, as Article 283bis(a) of the Civil Procedure Act expressly refers to the disclosure of evidence by a third party, but imposes more demanding proportionality and confidentiality requirements when the evidence or data concerned is in the possession of third parties.
Article 330 of the Civil Procedure Act also refers to the disclosure of documents from third parties.
7.3 What rules on privilege apply in your jurisdiction?
In Spain, professional conduct rules on professional secrecy govern privilege. Professional secrecy extends to documents received by lawyers from the counterparty or its lawyers. Based on certain constitutional rights, it is generally understood that such materials cannot be admitted or considered as evidence in civil proceedings without the relevant individual's consent. Under Article 283bis(b) of the Civil Procedure Act, courts must ensure that applicable attorney-client privilege rules are given full effect when ordering disclosure.
8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?
The parties can present documentary evidence, usually at an initial written stage of the proceedings (in the complaint and the answer to the complaint). The parties can also ask for other evidence (eg, the declaration of the other party's representative, witnesses, expert witnesses and a request for documents). The examination and cross-examination of witness and witness experts take place at a trial hearing.
Expert evidence is usually the key evidence on which the court will rely. Each party has the right to appoint its own expert. As claimants have the burden of quantifying their claims at the time of filing, they must file an expert report quantifying the damage suffered (prepared by an expert). It is common practice for the defendant to submit an expert report rebutting the claimant's report and providing its own counterfactual analysis. The defendant must submit its expert report five days before the preliminary hearing, which may be convened promptly. Therefore, preparing the expert report sufficiently in advance is crucial.
The court may also appoint a judicial expert upon a party's request as stated in Article 339 of the Civil Procedure Act; however, the appointment of judicial experts is not common in competition damages claims, due to the expertise required and the way in which the Spanish system is structured (where experts are appointed from a pre-determined list that does not include experts in this field).
8.2 What is the applicable standard of proof?
The claimant must prove:
- a violation of competition law;
- the existence of damage and its amount; and
- a causal link between the violation and the damage.
In follow-on actions, the proof of the violation will be provided by the administrative decision; while in standalone actions, the claimant must prove it. Please see question 10.5 on the binding effect of final decisions adopted by the pertinent competition authorities to prove the existence of the violation.
As explained in question 8.1, to assess the existence of damages and their amount, expert reports are used both by the claimants and defendants in most cases, and are relied on by courts. These reports must establish the hypothetical counterfactual but-for scenario that would have existed in the absence of the violation of competition law. The EU offers guidance on different methods that can be used to assess damages in its Practical Guide on Quantifying Harm in Actions for Damages based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union; and the Markets and Competition Commission is preparing its own guide on the subject, the draft of which is still in the approval phase (the public consultation phase ended in October 2021).
8.3 On whom does the burden of proof rest?
Under the pre-Directive 2014/104/EU regime (see question 2.2), the burden of proof of the damage (and of the causal link) lies with the claimant and there is no legal provision allowing a direct presumption of harm. While the Spanish courts have started applying a presumption of harm in follow-on actions based on other pieces of evidence (fundamentally, on the administrative decision), this possibility has not yet been confirmed by the Supreme Court and it remains to be seen how it will rule on this matter.
By contrast, in the post- Directive 2014/104/EU regime, Article 76 of the Law on the Defence of Competition (Article 17.2 of Directive 2014/104/EU) establishes a rebuttable presumption that cartels cause damage. The Court of Justice of the European Union (CJEU) expressly confirmed in its recent judgment of 22 June 2022 (Case C-267/20) that this presumption of harm does not apply to an action for damages that pertains to an infringement of competition law that ceased before the timeframe for transposing the directive expired (27 December 2016).
8.4 What defences are typically available in competition litigation?
It is common for defendants to dispute the statute of limitations of the action. The CJEU's judgment of 22 June 2022, established that Article 10 of Directive 2014/104/EU on limitation (Article 74 of the Law on the Defence of Competition), despite being a substantive provision (which should not be applied retroactively), applies in cases where the action for damages was exercised after the provisions transposing the directive into Spanish law entered into force, provided that the action could still be validly exercised (ie, the statute of limitations has not yet expired) on the date the timeframe for transposing the directive (ie, 27 December 2016) expired. Depending on the dies a quo in the specific case, the application of this criterion in Spanish cases may be contra legem, given that:
- Spain transposed the directive late (in May 2017); and
- the Spanish transitional law on the statute of limitations (Article 1939 of the Civil Code) provides that the applicable law will be that in force when the limitation period starts to run.
However, the most typical defence is the lack of proof of the damage or its amount (or the defective quantification of the damage due to deficiencies in the expert report).
The passing-on defence is also common. Although this defence is now included in Article 78 of the Law on the Defence of Competition, it was already recognised by the Spanish Supreme Court in its leading judgment of 7 November 2013 regarding a sugar cartel. The new provisions of the Law on the Defence of Competition state that the burden of proving that the whole or part of the overcharge resulting from the infringement was passed on rests with the defendant, which may reasonably require disclosure from the claimant or from third parties (see question 7.1 on disclosure requests).
9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications?
As explained in question 6.3, in Spain, everything is decided in a single procedure culminating in a full trial (and a judgment on the merits). Occasionally, no trial is held before the judgment is made – either because all the evidence to be adduced is documentary evidence (which is not common in competition litigation) or because the parties have not requested the expert's examination or the taking of any other evidence to be done orally at trial (and the court does not consider it necessary). This is not common either.
However, a competition damages claim may be disposed of without a full trial if the opposing parties reach agreement.
In this procedure, the parties can file a settlement agreement with the court so that it can be properly certified. Agreements are certified unless they are contrary to the law or affect the rights of third parties. The settlement has the same effect as a judgment and the signing parties may file an application for execution before the competent court to seek their compensation in accordance with the terms of the settlement agreement.
9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications?
Under the Civil Procedure Act, there is no specific procedure to settle collective actions; nor are there are any relevant judicial precedents or scholarly publications that properly address this issue. This causes significant uncertainty as to the feasibility of settling collective claims in Spain.
In the absence of a specific procedure, the general rule for settling individual claims described in question 9.1 will in principle apply.
Directive 2020/1828 expressly recognises the possibility of collective claims being settled, and conditions the validity on the authorisation of the settlement by the court or administrative authority. Otherwise, it will continue to hear the action taken as if the parties reached no settlement agreement.
10 Court proceedings
10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
Although judicial proceedings in Spain are public, the courts can adopt certain measures to protect confidential information when they consider this appropriate. These measures include:
- making redactions;
- conducting closed-door hearings or restricting access to such hearings;
- restricting the persons allowed to see evidence; and
- instructing experts to produce summaries of information in an aggregated or otherwise non-confidential form (see Article 283bis(b) of the Civil Procedure Act).
Some courts have also acceded to the implementation of a data room to provide controlled access by one party to data and calculations used to prepare another party's expert report.
10.2 How do the court proceedings unfold in your jurisdiction?
Once the claimant has filed its claim (together with the documentary evidence) and the court has admitted it, the court will summons the defendant to submit the statement of defence within 20 working days. Once the defendant has submitted the statement of defence, the court will summons the parties for the preliminary hearing.
Evidence is proposed orally by the parties at the preliminary hearing. The court will admit the evidence that it considers relevant and useful. In the preliminary hearing, the disputed facts are also established. Once the preliminary hearing has concluded and if any witness or expert witness evidence is to be held, the court will schedule a date for the trial.
The trial starts by taking the evidence that has been admitted at the preliminary hearing. Likewise, if any facts or evidence come to light following the preliminary hearing, this new evidence must be proposed and admitted before the evidence can be given at trial. Oral examinations will then take place in the following order:
- witnesses; and
- witness experts from each side.
If some evidence cannot be taken at trial (eg, because an important witness does not appear), the court may order an additional hearing. Once evidence has been taken, the parties state orally their conclusions on the facts at issue, providing a summary of the relevant evidence and the legal arguments grounding their pleas.
Finally, the judge of the corresponding court decides on the matter and issues the judgment.
10.3 What is the typical timeframe for proceedings?
There are no specific statistics for damages claims in antitrust cases. On average, proceedings before the first-instance courts relating to antitrust damages claims can take up to 16 months until the first-instance judgment is issued. At second instance, the procedure can be extended by an average of 10 additional months. However, this largely depends on the specific court and the complexity of the matter.
Compared to other jurisdictions, the Spanish jurisdiction is characterised as one of the fastest, mainly due to what has already been explained in question 6.3 and the fact that Spanish procedural law does not have a strike-out mechanism or preliminary or mere declaratory judgments.
10.4 What rules apply to the joinder of third parties?
In addition to collective actions (see question 4.1), under Article 72 of the Civil Procedure Act, there is a different procedural mechanism that allows claims from different parties to be grouped together through a joinder of claims. Although the joinder of several individual claims does not constitute a collective action as such, if used, it will allow several consumer or corporate claimants to file their claims in a single lawsuit.
The only requirement under Article 72 of the Civil Procedure Act for different parties to join claims is that the individual claims have a sufficient connection. Different claims are understood to have a sufficient connection when they are based on the same facts. The interpretation of these provisions varies from court to court and some ‘bad' experiences in the field of consumer banking litigation have made some courts reluctant to permit broad use of the joinder of claims. However, in the context of the so-called ‘trucks litigation', several courts have allowed some limited joinder of actions; and there have been calls from several forums for a greater ordering of claims to avoid:
- inefficient repetition of similar claims;
- excessive fragmentation; and
- risks of contradictory judgments.
In addition to Article 72 of the Civil Procedure Act, Article 76 of the Civil Procedure Act specifically foresees the possibility of bringing together proceedings aimed at protecting collective or diffuse rights and interests granted by the law to consumers and users, provided that the joinder complies with the rules foreseen in the Civil Procedure Act concerning the requirements for the joinder of claims.
10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision?
Administrative decisions have proven to have a great deal of weight for the Spanish courts when deciding on damages claims. This has been the case for decisions of both the Markets and Competition Commission and the European Commission – even before the formal recognition of the binding effect of the former after the transposition of Directive 2014/104/EU into Spanish law (see the Spanish Supreme Court's judgment of 7 November 2013 in the sugar cartel case).
11.1 What remedies are available in competition litigation in your jurisdiction?
Claimants are entitled to full compensation for the harm effectively suffered. The compensation will cover actual loss (usually identified as an overcharge in cartel claims) and loss of profit suffered because of a total or partial passing-on of the overcharges, plus interest.
As explained in question 2.1, claimants can also request from the court:
- the nullity (total or partial) of an agreement or clause that violates competition law; and
- the return of the economic benefit paid under it.
They can also request that the pertinent court order an undertaking that has violated competition law to adopt certain conduct or to refrain from carrying out specific conduct. For example, a company affected by abusive conduct may request the judge to force the infringer to stop that conduct.
11.2 Are punitive damages awarded in your jurisdiction?
Punitive damages (overcompensation) are not allowed under Spanish law. Damages actions under Spanish law are compensatory in nature.
11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard?
Although some Spanish courts have wrongly referred to the amount of the administrative sanction as an indication of the existence of effects, to quantify the damages, the national judge should only rely on the expert reports that the parties provide in the civil proceedings because, as the Court of Justice of the European Union established in its judgment of 6 November 2012 (C-199/11), Otis, "it still falls to the national court to determine individually the harm caused to each of the persons to have brought an action for damages" (paragraph 66).
12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process?
Both the claimant and the defendant may challenge the first-instance judgment by filing an appeal to the court of the jurisdictional region in which the court that heard the case at first instance is based. Appeals can be submitted on either procedural or substantive grounds, and the court of appeal is entitled to carry out a full review of the case.
Judgments issued by the courts of appeal can be challenged through a cassation or extraordinary appeal on procedural and material matters before the Spanish Supreme Court, but only on specific grounds (ie, without this being a third instance).
Although no permission is required, the deadlines for filing the appeal must be met. However, the Supreme Court strictly controls the fulfilment of procedural requirements and has broad discretion to admit appeals; it may, and frequently does, reject appeals.
13 Costs, fees and funding
13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?
Litigation costs generally include the fees of the lawyers, court agents and experts, as well as judicial fees. For the purposes of the taxation of the legal costs, the fees of the lawyers and court agents are calculated according to pre-established criteria in proportion to the amount in dispute.
Generally, and according to Article 394 of the Civil Procedure Act, litigation costs are imposed on the party that has all its pleas materially rejected. However, if the court finds that the case involved serious legal doubts related to facts or the application of the law, costs may be imposed on none of the parties.
According to the same provision, if the court partially upholds the claim, each party must pay its own litigation costs (unless one party has litigated in bad faith). Also, there is currently a preliminary ruling request pending before the Court of Justice of the European Union on the compatibility of Article 394.2 of the Civil Procedure Act with the right to full compensation of a person harmed by anti-competitive conduct, as referred to in Article 101 of the Treaty on the Functioning of the European Union. This may alter the current criteria (Case C-312/2021). The opinion of the attorney general (Kokott) was released on 23 September 2022.
13.2 Are contingency fees and similar arrangements permitted in your jurisdiction?
Yes. The arrangements between lawyer and client are not restricted and can include conditional or contingency fee models as agreed between the parties.
13.3 Is third-party funding permitted in your jurisdiction?
Funding of litigation is permitted under Spanish law but has not been specifically regulated so far. It works as another mechanism for aggregating claims. To date, this is yet to be explored to any significant degree in Spain. In this vein, Directive 2020/1828 binds member states to promote measures to avoid conflicts of interest when the filing of a collective claim is subject to third-party funding.
Funding third parties cannot be made liable for the other party's costs unless they formally participate in the legal proceedings (as claimants).
14 Trends and predictions
14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Damages actions arising from anti-competitive conduct are gaining prominence on the national scene due to the implementation of Directive 2014/104/EU in May 2017 and the so-called ‘truck litigation' that has arisen in Spain due to the decision of the Court of Justice of the European Union adopted in the Trucks Case AT 39824 on 19 July 2016. There are a multitude of civil proceedings open throughout the country's commercial courts relating to this case, as well as to similar cases such as those arising from other administrative sanctions in the milk, passenger cars and Euribor markets.
The most significant developments may be:
- the likely increase in damages claims due to the positive environment contributing to their success in Spain;
- the relatively low costs of litigation compared to other jurisdictions; and
- the increasing participation of funding third parties.
The transposition of Directive 2020/1828 on collective claims has likely further contributed to this increase.
15 Tips and traps
15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight?
Preparing the case sufficiently in advance is crucial, as the time limits for filing pleadings and providing evidence in Spain are short and the rules on them are strict. Preparing the case properly also involves studying the administrative file, the evidence and the facts considered proven that may be relevant when analysing a claim for damages.
As the expert report is the key piece of evidence, carefully choosing the expert team that will prepare the report and the data to be used, which must be adequately preserved, is also crucial. Given the complexity of the methods used in this field, preparing expert reports is time consuming and must be started in advance.
For claimants, interrupting the statute of limitations of the action until the expert report has been thoroughly prepared is crucial.
As a potential pitfall, and from a practical perspective only, the fragmentation of follow-on litigation arising from the same administrative decision into multiple (sometimes thousands of) similar cases makes it difficult to hold trials that are sufficiently long to properly analyse complex expert reports. The fact that many different commercial courts (not exclusively dedicated to competition cases) can hear the claims contributes to a disparity of criteria and to a lack of efficiency in the handling of cases.
Pepa Aróstegui Chapa contributed to this Guide.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.