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
Subject-Matter Jurisdiction Antitrust cases fall under the jurisdiction of the civil courts, specifically the Juzgados de lo Mercantil (Commercial Courts). The law assigns to these courts the competence to hear matters related not only to antitrust law but also to other commercial areas of law like unfair competition, industrial property, intellectual property, etc. Territorial Jurisdiction There is one or more Commercial Court per province (51 provinces in Spain). The general rule is that the competent Commercial Court is determined by the domicile of the defend - ant or, in some cases, by the place where the harm - ful event occurred or where the effects of the anti- competitive conduct were felt. In practice, for claims brought by consumers or small businesses, the courts of the claimant’s domicile may also be competent. 2.3 Impact of Competition Authorities Binding Nature of NCA Decisions on Civil Courts Pursuant to Article 75.1 of the LDC, the finding of an infringement of competition law in a final decision by a Spanish competition authority or a Spanish court is deemed irrefutable for the purposes of a damag - es action brought before a Spanish civil court. This means that, in the context of a civil damages action, civil courts are bound by the NCA’s finding of infringe - ment (provided that no further judicial challenges are possible) and may not question the existence of the infringement or render judgments incompatible with such a decision. This applies to decisions issued by either the Spanish NCA (the national CNMC or the regional authorities from Autonomous Communities which have created one) or the European Commission. Role of the NCAs in Civil Antitrust Proceedings The NCA may play a relevant role in civil proceedings, although its primary function is the investigation and sanctioning of anti-competitive conduct in the admin - istrative sphere. In the context of civil litigation, the NCA may:
infringements taking place before that date, the appli - cable regime is that established in Article 1902 of the Spanish Civil Code, the typical non-contractual (tort) liability action which requires proof of an unlawful act or omission, the existence of a damage and a causal link between the conduct and the damage. Although there are some nuances between the two legal regimes, in general, both provide for a distinction between follow-on and stand-alone actions. Follow-On Actions These are claims for damages brought after a com - petition authority (such as the European Commission or the Spanish CNMC) has issued a binding decision finding an infringement of competition law. See 2.3 Impact of Competition Authorities for further details. In follow-on claims, the infringement is irrefutably established and cannot be contested in the civil pro - ceedings. The claimant must still prove the existence and quantification of the damage and the causal link, but the burden regarding the existence of the infringe - ment is alleviated. Stand-Alone Actions These are claims brought independently of any prior decision by a competition authority or after a deci - sion that does not comply with the legal requirements (See 2.3 Impact of Competition Authorities for further details). The claimant must prove the existence of the infringement, the damage suffered, and the causal link between the two. In both cases, the recoverable damage is any and all the harm that the victim of the anti-competitive con - duct might prove to have suffered: (i) the damnum emergens or actual loss (ie, the direct loss suffered as a result of the infringement; (ii) the lucrum cessans or loss of profit (ie, the profit that the injured party failed to obtain due to the infringement; and (iii) the applicable interest, which is considered an essential element to ensure full compensation. 2.2 Courts In Spain, the allocation of antitrust cases is governed by both subject matter and territorial rules, with a clear specialisation in the handling of these disputes.
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