Spanish court reduces overcharge in trucks cartel from 20% to 8% on appeal

On 18 December 2020, a Spanish second-instance court (Audiencia Provincial de Asturias, "APA") issued a ruling partially endorsing an appeal brought by IVECO S.a.P. ("IVECO") against a judgment awarding damages to one of its customers in the context of a follow-on action deriving from the EU Commission's decision in the Trucks case. The court held that the criteria used for quantification of damages were not supported by solid economic evidence and reduced the overcharge from a 20% to 8%.

In 2016 the EU Commission issued a decision finding that IVECO, together with other truck manufacturers, had participated in a 14 year cartel relating to prices and emissions technology (see our newsletter article here). A significant number of follow-on damages actions have been brought by customers before national courts; for example, see our newsletter articles on the recent German Supreme Court ruling and follow-on damages actions in the UK. 

In one such case brought against IVECO by one of its customers, a Spanish commercial court held at first instance that the EU Commission decision created a presumption that the infringement had given rise to damages. The claimant was awarded €78,887.23 based on an economic report establishing that the price overcharge resulting from the infringement was above 20%.

In its appeal judgement on 18 December 2020, the APA confirmed that the limitation period for filing a follow-on action runs from the date of publication of the EU Commission decision (not the corresponding press release) and could be interrupted by means of an out-of-court complaint to the defendant.

The APA also confirmed that the existence of damages could be presumed. Whilst the EU Damages Directive (which requires Member States to introduce such a presumption into their national law) did not apply to the case, the presumption flowed directly from Article 101 of the Treaty on the Functioning of the European Union ("TFEU"), Regulation 1/2003 and basic principles of EU law.

Nonetheless, the APA disagreed with the quantification of damages on the basis that the economic report (which established the level of the overcharge resulting from the infringement was above 20%) lacked a solid evidential basis. As IVECO did not propose an alternative, the APA set the percentage at the 8%, on the basis of:

• the nature of the infringement, which consisted of a long-lasting cartel having as its object the exchange of information on gross prices, involving companies with high turnovers and affecting the whole EEA.
• the fact that the infringement resulted in a distortion of the market could be inferred from the EU Commission decision.
• market factors such as demand elasticity or the application of different discounts and margins by distributors should lead to cautious estimates.
• the fact that other Spanish courts and national courts of other Member States (for example, Germany) have considered similar percentages, below 10%.

Finally, the APA also endorsed the granting of interest being an essential element of damage reparation.

This case provides valuable guidance on the estimation of price overcharges and damages deriving from EU competition law infringements in cases where the claimant has failed to provide adequate economic evidence of the extent of the overcharge.

With thanks to Laura Moas Ydoate of Ashurst for her contribution.