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
• provide information or reports at the request of the civil court; and • intervene as amicus curiae in civil proceedings, offering its technical expertise and interpretation regarding the infringement and its effects. However, the NCA does not act as a party to the civil proceedings, nor does it have the power to determine the amount of damages, which is the prerogative of the civil court. Impact of Foreign NCA Decisions on Spanish Civil Courts Decisions of foreign NCAs (ie, those of other EU mem - ber states) do not have the same automatic binding effect. Nevertheless, they may have a significant impact in Spanish civil proceedings. • Decisions of foreign NCAs may be considered as relevant by Spanish civil courts, especially where they concern the same facts at issue in the litiga - tion. • As established in Article 75.2 of the LDC, it shall be presumed, unless proven otherwise, that a competition law infringement exists when it has been established in a final decision by a competi - tion authority or judicial body of any other member state, without prejudice to the possibility of alleging and proving new facts of which the party had no knowledge in the original proceedings. Therefore, the Spanish court may depart from the facts established in the foreign decision, expressly stating the reasons justifying such divergence. 2.4 Proof Allocation of the Burden of Proof The allocation of the burden of proof in Spanish civil proceedings is governed by Article 217 of the Civil Procedure Law (LEC). The principle is that each party must prove the facts on which it bases its position. The burden of proof does not establish who must prove or how certain facts must be proved, but rather determines the con - sequences of a lack of sufficient proof of relevant
facts. If, at the time of judgment, there is uncertainty due to insufficient evidence on certain relevant points, the rules of the burden of proof dictate which party is to be prejudiced by this lack of proof. Legal Presumptions and Judicial Presumptions There are both legal and judicial presumptions in Spanish law. In the context of antitrust litigation, the most relevant are judicial presumptions under Article 386 LEC. They allow the court to dispense with proof of the pre - sumed fact if, from the proven or admitted facts, and the precise and direct link between them, the court reaches certainty about the presumed fact, according to the rules of sound criticism. Article 386 LEC is not a legal presumption and it admits proof to the contrary. The party affected by a judicial presumption may always adduce contrary evidence, either to prove the non-existence of the presumed fact or to demonstrate the absence of the necessary link between the presumed fact and the proven fact that supports the presumption (Article 385.2 LEC, by reference from Article 386.2 LEC). If the defendant’s evidence does not undermine the basis or result of the presumption, the court must address the presumed fact. In antitrust litigation, there is also a specific legal pre - sumption introduced by Article 17.2 of the Damages Directive as implemented in Article 76.3 of the LDC: cartel infringements are presumed to cause harm, unless proven otherwise. However, even for cases not covered by the temporal scope of this provision, the Supreme Court has consistently held that judicial pre - sumptions of harm may be applied if the requirements of Article 386 LEC are met. Indeed, the presumption of harm, at least in long-lasting cartels, has been easily applied by the Spanish courts. Probative Value of NCA Decisions See 2.3 Impact of Competition Authorities for details on the binding nature of NCA decisions. In any case, NCA decisions have significant probative value in civil damages actions. The Supreme Court has affirmed that the factual findings and legal characterisation of the infringement contained in such decisions are bind -
202 CHAMBERS.COM
Powered by FlippingBook