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
• Summoning and appearance – witnesses are summoned to appear at the hearing. If a witness resides outside the court’s jurisdiction, their tes - timony is preferably taken via videoconference; if not possible, it may be taken at their domicile, with or without the parties’ presence, depending on circumstances (Article 364). • Oath and examination – before testifying, each wit - ness must swear or promise to tell the truth, being warned of the penalties for perjury (Article 365). The court initially questions the witness regarding their identity, relationship to the parties, and any circumstances that may affect their impartiality (Article 367). • Questioning – the party who proposed the witness examines them first, followed by the other parties. Questions must be clear, precise and not include value judgments. The court rules on the admissibil - ity of questions in the same act (Articles 368–370). • Impartiality and tachas – parties may challenge ( tachar ) witnesses for reasons such as kinship, dependency, interest in the case or enmity. Chal - lenges must be substantiated and may be opposed by the other parties (Articles 377–379). • Documentation and valuation – testimonies are recorded, preferably by audio or audiovisual means, ensuring authenticity and integrity. The court evaluates witness statements according to the rules of sound judgment, considering the wit - ness’s knowledge, impartiality and any challenges raised (Articles 374, 376). 7.2 Expert Witness Role and Procedure The process for hearing expert witnesses is also gov - erned by the LEC, as follows. • Purpose and appointment – expert evidence is admitted when scientific, technical, or practical knowledge is required to clarify facts. Parties may submit expert reports with their initial pleadings or request the court to appoint an expert (Articles 335–339). • Expert reports – parties must submit expert reports in writing, accompanied by supporting documents or materials. If a party cannot provide the report with the initial pleading, it must announce its inten - tion to do so and submit the report as soon as possible, and at least five days before the prelimi -
nary hearing or within 30 days of the initial pleading in summary proceedings (Articles 336–337). For the plaintiff to have this right, they will also be required to justify that the defence of their rights did not allow for delaying the filing of the claim until such time as the expert report could be obtained. • Judicial appointment – if a party requests a court- appointed expert, the court selects one from official lists provided by professional associations, by lot and in order. The expert must accept the appointment and swear or promise to act objec - tively (Articles 339–342). Since official lists for economic experts include all types of economists, even if they do not have the appropriate expertise for antitrust disputes, this method is considered to be extremely inefficient. • Expert’s duties – the expert must act with the utmost objectivity, considering both favourable and unfavourable aspects in respect of all parties, and is warned of criminal penalties for breach of duty (Article 335). • Hearing and ratification – parties may request the expert’s appearance at the hearing to explain or clarify their report, answer questions, or respond to objections. The court may also require the expert’s presence if it deems it necessary for understanding the report (Articles 346–347). • Cross-examination and critique – parties and their counsel may question the expert, request clarifica - tions, and even have their own experts critique the opposing expert’s report. The court may also pose questions (Article 347). • Challenges ( tachas ) and recusal – experts may be challenged for lack of impartiality or other grounds and, in the case of court-appointed experts, may be recused under specific circumstances (Articles 124, 343–344). • Valuation – the court assesses expert evidence according to the rules of sound judgment, con - sidering the expert’s qualifications, the reasoning of the report and any challenges or contradictions (Article 348).
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