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
limitation, which have been applied to prior cases in the circumstances derived from the judgment of the 22 June 2022, C-267/20, DAF & Volvo CJEU), the Supreme Court has considered that the main developments of the Directive were already present in the prior regime for damages claims. For example, as mentioned in 1.1 Current Framework for Private Antitrust Litigation , Supreme Court case law has expressly clarified that the court’s ability to estimate the quantification of the damages under Article 17.1 of the Directive was pre-existing in the Spanish leg - islation and, therefore, courts are always entitled to assess the damage, even if they cannot rely on the parties’ expert reports, provided that a minimum pro - batory activity has been carried out by the plaintiff. Spain has seen a significant increase in private enforcement, particularly following high-profile car - tel decisions by the Spanish Competition Author - ity (CNMC) and the European Commission. Notable cases include follow-on damages claims related to the trucks litigation (stemming from two European Commission decisions in 2016 and 2020) and the car manufacturers’ cartel (from a CNMC decision dated 2015). Ten years after the important case law from the Supreme Court in the sugar cartel case, new case law has been resumed as from 2023. The Supreme Court has shaped the approach of Spanish courts to issues such as the burden of proof, quantification of damages, and the pass-on defence. In June 2025, the Supreme Court also decided on two important issues that were still pending to be resolved in Spain: (i) the starting date for the limitation period in follow-on cases arising from CNMC’s decisions only begins when the decision has become final (which typically adds a period of around five or six years); and (ii) compound interest up to the date of the claim is applied in the context of damages actions for compe - tition law infringements except if in the specific case it is proven that there was no lost opportunity cost or that the application of compound interest would result in overcompensation. It is also important to mention that a draft law on collective actions was published in the Parliament’s
Gazette in March 2025. Its main objectives are to enhance judicial protection for consumers, ensure effective remedies against unlawful practices, and align Spanish law with Directive (EU) 2020/1828 on representative actions. It covers both injunctive (ces - sation) and compensatory (redress) actions, where designated “qualified entities” would be authorised to bring collective actions under an opt-out system for Spanish residents except for high-value claims or in certain circumstances where the court may require an opt-in system. Foreign entities from other EU member states, included in the European Commission’s list, are also recognised for cross-border actions, provided they meet the necessary criteria. Nevertheless, the question of whether the law (if passed as it is) covers collective actions for antitrust damages has been a subject of debate: while some legal experts interpret the broad scope of the draft law as including antitrust damages claims by consum - ers, others note that consumers affected by antitrust conduct are not “consumers” as such, since the kind of protection for victims of anti-competitive conduct is of a different nature to consumer protection under wrongdoing from which the harm arises and is not strictly related to consumer protection under Article 169 TFUE. In the view of the authors, an express clarification on the law is required. In addition, if anti - trust litigation is included, some technical adaptations would be required to better align the draft law with the practicalities of antitrust litigation and, possibly, to also regulate collective actions for damages where the victims are not consumers. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis The statutory basis for private antitrust claims in Spain is rooted in both national and EU law, reflecting the harmonisation of competition policy across member states. The LDC constitutes the legal instrument on which antitrust claims can be based for infringements that took place after 27 May 2017 when the Damages Directive was implemented into Spanish law. For
200 CHAMBERS.COM
Powered by FlippingBook