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
8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages Damages are assessed with the objective of achieving full compensation for the harm suffered by the claim - ant as a result of the infringement. The guiding principle, as established both in national law (notably Article 1902 of the Civil Code and Article 72 of the LDC) and in line with Article 3 of the Dam - ages Directive, is to restore the injured party to the position they would have been in had the infringe - ment not occurred. This encompasses both actual loss (damnum emergens) and loss of profit (lucrum cessans), as well as the payment of interest. The quantification of damages in competition cases is particularly challenging due to the need to construct a counterfactual scenario. Spanish courts, following both national and EU juris - prudence, have recognised the inherent evidentiary difficulties in such cases. As a result, courts are empowered to estimate the amount of damages when it is practically impossible or excessively difficult to quantify them precisely based on the available evi - dence. This judicial discretion is exercised provided that the existence of harm is established, even if the precise amount cannot be determined (see, for exam - ple, the Supreme Court’s consistent jurisprudence and the application of Article 76.2 of the Competition Act). Recent case law from the Supreme Court consist - ently applied since June 2023, has confirmed that the presentation of an expert report by the claimant, even if not entirely convincing, may suffice to shift the burden and justify the use of judicial estimation. According to this case law initiated in June 2023, the Supreme Court has established that the minimum overcharge arising from the trucks case is 5%. This rule has been applied by certain courts to other cases, but the Supreme Court has not confirmed (or denied) it for such other cases.
Exemplary or Punitive Damages Exemplary or punitive damages are not available under Spanish law. The principle of full compensation strictly prohibits overcompensation, including puni - tive, multiple, or exemplary damages. The compen - sation awarded must be limited to the actual harm suf - fered, including both direct and consequential losses, but may not exceed this amount. Availability of the “Passing-On” Defence The “passing-on” defence is recognised and avail - able in Spanish antitrust litigation. See 2.5 Pass-On Defence for further details. Rules Applicable to Interest on Damages Interest is considered an essential component of full compensation in competition damages cases. Both EU and Spanish law require that interest be award - ed to ensure that the injured party is fully restored to the position they would have occupied absent the infringement. The prevailing approach, as confirmed by the Supreme Court and lower courts, is that inter - est should accrue from the date the damage occurred (typically, the date of purchase or payment of the over - charge) until the date of actual payment of the com - pensation. As mentioned in 1.2 Recent Developments , the Supreme Court resolved in two judgments in June 2025 (judgment No 889/2025 dated 5 June, ECLI:ES:TS:2025:2621 and judgment No 971/2 025, dated 17 June, ECLI:ES:TS:2025:2857, both issued in the envelopes cartel litigation) that compound interest up to the date of the claim is applied in the context of damages actions for competition 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. The Supreme Court establishes that compound inter - est is to be applied exclusively to the period between the occurrence of the damage (ie, the moment when the overcharge was paid as a result of the cartel) and the date of the filing of the claim. However, for the period between the filing of the claim and the judgment of first instance, the court holds that the legal interest rate shall apply, but only in its
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