Spanish cartel diverging damages claims developments

Spanish Courts continue to have diverging approaches to damages in cartel cases, in particular towards the damages arising from the Trucks Cartel. Such differences have been mitigated by appeal courts in Barcelona, Valencia and Galicia. Recently, these disparities amongst lower courts have been also displayed in damages claims arising from the car dealers cartel sanctioned by the Spanish Competition Authority ("CNMC") in 2015.

Since the implementation of the Damages Directive in Spain in 2017, the country has witnessed an explosion of damages actions arising from different cartels, mainly, from the European Commission's trucks cartel decision. However, a diverging landscape of first instance rulings in the Spanish antitrust damages arena has been created. This is because, damages actions are decided by lower courts on a case-by-case basis, as the Spanish judicial system does not encourage class claims and the Supreme Court has not provided a clear cut ruling establishing the criteria for establishing damage arising from a cartel and its quantification.

Two lower courts in Asturias have recently decided on the first claims relating to the car-dealer cartel sanctioned by the CNMC in 2015, reaching opposite outcomes:

• One court has rejected the award of damages, as it has deemed insufficient the expert report provided by the claimants in order to establish the existence of a damage arising from the cartel.
• The other court has granted damages to another claimant regarding an identical case, as it has admitted the existence of the damage by relying on the same economic evidence and expert report.

Similar discrepancies are found in the damages trucks cartel judgements, where lower courts have granted different damages quantifications, ranging from 5% to 20%.

The court of appeal of Barcelona has recently reviewed a first instance ruling concerning the award of truck cartel damages and has dropped the compensation from 10% to 5% of the truck purchase price. In this regard, the lower court deemed that, even if the expert economic report provided by the claimant was insufficient to establish the existence of a damage, under the pre-Directive regime, a presumption of harm arising from cartels existed and hence estimated the damage to a 10%. The court of appeal in Barcelona upheld this ruling but lowered dropped the compensation to a 5%, as the absence of a reliable economic report provided by the claimant forces the court to adopt a cautious approach to this matter.

The former ruling follows the judgments granted by the courts of appeal in Valencia and Galicia, deeming that under the pre-Directive regime exists a presumption of harm arising from cartels and that judges have the duty to autonomously establish the quantification of the compensation absent a reliable economic expert report provided by the claimant. Similarly to Barcelona's court of appeal, in such cases, Valencia and Galicia's courts of appeal have granted compensation of 5% of the truck purchase price. It is on note that this jurisprudence has not been unanimous amongst lower courts in the territory of Spain and, for example, the first ruling of the Asturian courts presented does not follow it, as it rejects the claim.  

These cases show how the landscape of damages actions in Spain is evolving from a divergent approach from lower courts towards a more unanimous approach in courts of appeal. Nevertheless, we are still in early stages of the process to the development of a consistent jurisprudence on the matter and it is still an on-going issue as there are many courts of appeal that still have to make a decision regarding this matter, such as the Madrid's court of appeal, in order to be able to establish a consistent pattern of interpretation of the Spanish law regarding antitrust damages actions.

With thanks to Ana Soria of Ashurst for her contribution.