SPAIN Law and Practice Contributed by: Iñigo Igartua Arregui, Eduardo Gómez de la Cruz, Andrea Díez de Uré and Jesús Urriza Rodríguez, Gómez-Acebo & Pombo
Gómez-Acebo & Pombo Castellana, 216 Madrid 28046 Spain Diagonal, 640 Barcelona 08017 Spain Tel: +34 91 582 91 00; +34 93 415 74 00 Fax: +34 91 582 91 14 Email: madrid@ga-p.com; barcelona@ga-p.com Web: www.ga-p.com
1. Introduction 1.1 Current Framework for Private Antitrust Litigation The basic legislative framework for antitrust litiga - tion in Spain is the Law 15/2007, dated 3 July, on Competition Defence (LDC) and Law 1/2000, dated 7 January, on Civil Proceedings (LEC), as amended in May 2017 by the implementation of the Directive 2014/104/EU, Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the “Damages Directive”). Article 1902 of the Spanish Civil Code still applies to actions for damages arising from infringements of competition law that occurred prior to the incor - poration into Spanish law of the Damages Directive. The Supreme Court has confirmed the above and also that “Article 1902 of the Civil Code cannot be applied to events that occurred prior to the date of its transposition by means of an interpretation in con - formity with the Directive”. See, for example, judg - ment from the Supreme Court dated 21 January 2025, ECLI:ES:TS:2025:216. Nevertheless, the distinction seems to have limited practical consequences. For instance, the Supreme Court has stated that the judicial estimation of dam - ages is not a novelty introduced by the Damages Directive, but rather a faculty that was already embed -
ded in Spanish law. For example, see judgment dated 27 January 2025, ECLI:ES:TS:2025:270, last para - graph of legal ground 11: “the power of the judge to determine compensation for the damage caused by conduct infringing competition law by means of an estimate was already recognized in our legal system as a necessary consequence of the principle of full compensation for the injured party, as established in Article 1902 of the Civil Code and Article 101 TFEU, even before the entry into force of the Directive and its transposition into domestic law through Article 17.1 of said Directive”. However, to quote another exam - ple, although it is a minority position, certain courts consider that the regime of joint and several liability provided for in the Damages Directive would not apply to the claims under Article 1902 of the Civil Code, a point the Supreme Court has not yet specifically decided on. 1.2 Recent Developments Recent years have witnessed important legislative and judicial developments. The implementation of the EU Damages Directive harmonised key aspects of private antitrust litigation, including limitation periods, disclo - sure, and the presumption of harm in cartel cases. Spanish courts have issued landmark decisions clari - fying the application of these rules, particularly regard - ing the quantification of damages and the admissibility of economic expert evidence. Although the substantive provisions of the EU Dam - ages Directive are not applicable to the cases decid - ed until now (with the exception of the provisions on
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