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
award, the party that did not participate in the ADR may be ordered to pay the costs. If the courts con - sider that any of the parties has acted in violation of the rules of procedural good faith or with abuse of the public service of justice, they may impose, in a separate piece, by reasoned agreement and respect - ing the principle of proportionality, a fine that may range from EUR180 to EUR6,000, without in any case exceeding one third of the amount of the litigation. If the courts understand that the action contrary to the rules of good faith or with abuse of the public service of justice could be imputable to any of the profession - als involved in the process, without prejudice to the provisions of the preceding paragraph, they will trans - fer such circumstance to the respective professional associations in case the imposition of some type of disciplinary sanction could be appropriate. In Spain, there is no prohibition against such arrange - ments, provided that they do not infringe public policy or ethical rules. One of the most significant developments in recent years in Spain has been the emergence of third-party litigation funding for antitrust damage actions. This mechanism allows claimants to pursue complex and costly antitrust damages actions without bearing the full financial risk. A third-party funder, typically a spe - cialised investment entity, covers the legal costs and, in return, receives an agreed share of any damages awarded or settlement reached. This arrangement is particularly prevalent in collective or mass claims, such as those arising from large-scale cartels. Funding is generally available in the following circum - stances. 11. Funding and Costs 11.1 Litigation Funding • Meritorious claims – funders conduct a rigorous assessment of the merits of the claim, the likeli - hood of success, and the potential quantum of damages. Only claims with a strong legal and evidentiary basis are likely to attract funding. • High-value or collective actions – given the sig - nificant costs associated with antitrust litigation
(expert reports, economic analysis, lengthy pro - ceedings), funders are more inclined to support cases involving substantial damages or a large group of claimants, which increases the potential return on investment. • Follow-on actions – in cases where a prior NCA decision has established the infringement, the risk profile is lower, making such actions more attrac - tive to funders. The existence of a binding decision on liability reduces the litigation risk and enhances the prospects of recovery. • Jurisdictions permitting funding – the legal frame - work must allow for third-party funding. In Spain and most EU jurisdictions, there is no prohibition against such arrangements, provided that they do not infringe public policy or ethical rules. 11.2 Costs In Spanish civil litigation, including actions for damag - es arising from anti-competitive practices, the general rule is that costs are awarded according to the princi - ple of “loser pays” ( criterio objetivo del vencimiento ). This is codified in Article 394 of the LEC. The losing party is typically ordered to pay the legal costs of the prevailing party, unless the court finds that the case presented serious factual or legal doubts, in which case each party may bear its own costs. In instances of partial success – where the claim - ant’s demands are only partially upheld – each party is generally required to pay its own costs and half of the common costs, unless one party is found to have litigated recklessly. Recent jurisprudence, including the interpretation of the ECJ in its judgment of 16 February 2023, C-312/21, Tráficos Manuel Ferrer , has confirmed that the Span - ish system of costs, as set out in Article 394 LEC, is compatible with the principle of effectiveness under EU law, provided it does not render the exercise of the right to full compensation for antitrust harm practical - ly impossible or excessively difficult. The CJEU also clarified that, in cases of partial success, it is reason - able for each party to bear its own costs and a share of the common costs, especially if the generation of those costs is attributable to the party’s conduct, such as making excessive claims or pursuing the litigation in an unreasonable manner.
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