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
ing on civil courts, at least as regards the existence, participants, duration, and scope of the infringement. The courts may, however, assess the specific impact of the infringement. The NCA decision serves as a solid factual basis for the presumption of harm, espe - cially when the characteristics of the cartel (object, participants, market share, duration, and geographic scope) are clearly described. Indeed, the Supreme Court has established that, even before the Damages Directive, civil courts are required to take into consideration the facts estab - lished as proven in final NCA decisions, particularly insofar as such facts constituted the conduct classi - fied as unlawful due to its anti-competitive nature and/ or formed the factual basis for assessing the scope and consequences of the infringement, without preju - dice to the court’s power to depart from those facts, provided it sets out the reasons and grounds justifying such divergence. Applicable Standard of Proof The standard of proof in civil proceedings is the bal - ance of probabilities. The claimant must provide suf - ficient evidence to make it more likely than not that the alleged facts are true. In the context of antitrust litigation, the Supreme Court has recognised the par - ticular evidentiary difficulties faced by claimants due to information asymmetry and the secretive nature of cartels. Consequently, the courts have adopted a flexible approach, allowing for judicial presumptions and the use of estimation techniques when precise quantification of damages is practically impossible or excessively difficult. Nevertheless, the claimant is still required to present a minimally reasonable and technically founded esti - mation of the harm, typically supported by an expert report based on generally accepted methods and plausible results. The court may then use its powers of estimation to determine the amount of damages, provided the existence of harm is established. 2.5 Pass-On Defence Existence of the “Pass-On” Defence Spanish law recognises the “pass-on” defence in actions for damages arising from anti-competitive
conduct. The “pass-on” defence allows a defendant (typically the infringing undertaking) to argue that the claimant has not suffered the full extent of the alleged harm because the overcharge or damage has been passed on, wholly or partially, to downstream pur - chasers or customers. This doctrine is rooted in the compensatory nature of damages in competition law and the principle prohib - iting unjust enrichment: compensation should not be awarded to a party that has not actually suffered the loss, as this would result in overcompensation. Allocation of the Burden of Proof The defendant who invokes the “pass-on” defence bears the burden of proving the factual basis for this defence. The Supreme Court has clarified that, in order to prove the passing-on, it is not enough to show a mere increase in the claimant’s prices; it must be established that the claimant has actually succeeded in passing on the harm, taking into account possi - ble reductions in sales, loss of market share, or other economic effects that may have prevented full com - pensation through price increases. If the defendant fails to provide sufficient evidence of the “pass-on”, the defence will not be upheld. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Rules on Limitation Periods in Competition Damages Actions The rules governing limitation periods for actions seeking damages for competition law infringements in Spain have evolved significantly, particularly in light of the transposition of the Damages Directive and the case law of the Court of Justice of the European Union (CJEU) and the Spanish Supreme Court. Duration and Commencement of the Limitation Period Pre-Directive regime Prior to the transposition of the Damages Directive, the applicable limitation period was generally one year, as
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