ANTITRUST DAMAGES’ CLAIMS IN SPAIN

: After briefly describing the institutional and l egal framework for antitrust damages claims in Spain, this article surveys the courts’ experience in deciding these actions and shows the rise in cartel follow-on claims in the last five years. Damages claims for antitrust infringements declared or known after the 27 May 2017 will be governed by national legal provisions implementing Directive 2014/104/UE. Although there had been in the past some antitrust damages cases for abuse of dominance and vertical restraints (both follow- on and stand-alone), nowadays follow-on cartel actions are the most numerous. Therein, private plaintiffs tread on the heels of competition authorities. Competition authorities’ unearthing of major cartels in several industries has paved the way for damages suits by their victims. After the Supreme Court decided the leading case of damages’ claims in the sugar cartel, follow-on on damages claims have germinated from the paper envelopes cartel, the decennial real estate insurance cartel and, most notably, the truck manufacturers’ cartel.


Introduction
Administrative competition authorities (national and regional) have historically been the main enforcers of competition law in Spain 1 , but more recently private claims before judges have emerged and slowly grown as an alternative and complementary enforcement tool. This is shown by the upsurge in private litigation in the last five years in several cartel follow-on claims (paper envelopes, decennial insurance, car distribution and trucks' manufacturers). On the side, the adoption of specific provisions on antitrust damages claims will further clarify the legal settings for this actions in the future (Spanish law lacked any specific provision in this regard 2 , until Directive 2014/104/UE was implemented 3 ). As is well known, public enforcement of competition law advances the public interest and it is aimed at declaring infringements of the competition rules, punishing the unlawful behaviour, and eventually, at designing remedies to restore competition. Private enforcement of competition law pursues private interests and seeks that courts declare the infringement, order its cessation, void anticompetitive clauses in contracts or award compensatory damages. Until now, Spanish courts have accommodated damages actions within the existing legal framework for tort claims and they have managed to build a relatively coherent legal doctrine on the specific issues raised by antitrust damages claims. After briefly describing the legal framework for deciding these suits, this article reviews the most relevant cases and extracts the lessons that can be learned from them.

Legal Framework for Antitrust Damages Actions
Conceptually, antitrust damages actions are tort claims 4 . Compensation is sought for harm resulting from anticompetitive unlawful behaviour. The basic rules and requirements regarding tort claims apply in antitrust damages claims as well. Plaintiffs need to show that any form of illicit conduct has caused them some harm and also quantify the harm suffered. These three elements (illicit action, harm and causality) are common to all tort claims (article 1902 of Civil 4 Working Paper IE Law School AJ8-256-I 15-10-2020 Code: "any person who by action or omission causes harm to another by fault or negligence is obliged to repair the damage caused"). Antitrust damages actions are facilitated where a prior infringement decision has been adopted by one of the competition authorities in charge of public enforcement of competition law ("follow-on"). The claim for compensation will be further facilitated where the infringement decision discloses detailed evidence on the particular conditions of the infringement and, eventually, on its effects. In many of these follow-on claims, the decision of the competition authority finding and punishing anticompetitive behaviour assists the victims to prove not only the unlawful conduct but also brings valuable information and data regarding the causation and quantification of the harm.
In the absence of a prior decision from the public enforcer, the victims of anticompetitive conduct must prove all the elements on which the damage action is grounded (stand-alone claims). Extended knowledge and experience of Spanish courts on tort litigation sets the basis for the recent advent of antitrust damages claims. Case-law on other economic torts provides useful lessons to antitrust victims on both the proof and assessment of harm and causality. Broadly speaking, harm caused by anticompetitive conduct can be conceived as a harm caused by any other economic offence; and Member States' national rules on causation and attribution of liability are useful for liability arising from anticompetitive behaviour. However, in the context of liability private damages for competition law infringements, case law of the EU Court of Justice has further developed some principles on causation 5 and attribution of liability 6 that inform the courts of the Member States when ruling on private damages actions 7 . Furthermore, as it also occurs in other types of unlawful conduct that generate liability, in case of cartels it can be deemed that some level of harm have automatically occured (ex re ipsa loquitur); this presumption that, of course, is subject to rebuttal. Although the existing caselaw on economic torts is useful, the courts' experience with antitrust damages claims has been, until recently, rather limited 8 . Since the 80's there has been a high number of claims regarding anticompetitive restraints in fuel distribution, but from the judgments issued on those cases it has been difficult to extract any principles or findings that could be extended to other cases. Apart from the "fuel retail antitrust" saga (infra §3.1.1), there has been only one leading case in which the Supreme Court confirmed a follow-on claim in relation to the sugar cartel (infra §3.3.1). Although it is a single case -embodied in two judgments-some of the Supreme Court's legal grounds therein have proved to be of value for Spanish lower courts in deciding antitrust damages claims filed after 2014.
5 Working Paper IE Law School AJ8-256-I 15-10-2020 The development of the nascent antitrust damages caselaw in Spain should be credited to the circa sixty specialized commercial judges and specialized sections in the high provincial courts (with also several specialist magistrates seating in the Supreme Court) 9 . Territorial jurisdiction among the several commercial judges is allocated following the criteria set by the Spanish Civil Procedure Act 10 . In addition, in terms of funding, the general rule for civil proceedings in Spain is that legal fees and litigation costs are paid by the losing party, unless the court finds that a case presents serious legal or factual complexities 11 . Conditional fee arrangements and contingency fees are allowed 12 and several litigation funds operate in Spain and have increasingly shown their interest in acquiring and funding antitrust damages claims 13 . Antitrust damages claims arising after May 2017 are governed by the substantive rules adopted in implementation of Directive EU/2014/104 14 . Doubts exist concerning either their application to claims risen during the transposition period or that were pending when the Directive was implemented or, alternatively, the interpretation of traditional tort rules in conformity with the Directive to cases filed after the Directive entered into force but before it was implemented (with delay) by the Spanish legislator 15 .

Cases
In the past, most private actions for infringements of competition law have been "stand-alone" claims in commercial disputes concerning vertical restraints or abuses of dominance. These have generally been cases in which the infringement of competition law was used to seek the nullity of contracts or obligations and, occasionally, to claim compensation 16 . 9 Commercial judges and commercial courts are competent to decide damages claims based on infringements of EU competition rules (TFEU articles 101 and 102) or domestic competition rules (articles 1 or 2 of the DCA). See article 86 ter.2.f) of Basic Act of Judicial Power as amended by (Official State Gazette 157 of 2/7/85) and Additional provision 1 of DCA2007. 10 Civil Procedure Act 1/2000 of 7/1 (CPA, Official Gazette 7 of 8/1/2000). But see preliminary ruling lodged by Madrid commercial court 2 of 23/12/19 (PO550/18, C-30/20) on the interpretation of article 7(2) of Regulation EU/1215/2012 (OJUE L351 of 20/12/12) on this regard. 11 See Article 394 of CPA (with a cap of one-third of the total value of the action). If there is a partial rejection/award of the claim, each party will bear its own costs and the common costs will be divided equally. More recently there has been an increase in "follow-on" claims subsequent to the Spanish competition authorities' efforts uncovering and sanctioning a number of cartels. Most of these follow-on actions are still pending in court, at different stages of the procedure.

Vertical restraints
Quite a few private competition disputes before the courts have concerned distribution of basic consumables (bread, beer), automobiles, journals/press, pharmaceuticals, farming equipment, and also franchising contracts; still, the largest number of actions have concerned disputes in the fuel industry. Most of the claims involve issues related to pricing or other terms in the distribution contract which could be deemed anticompetitive (f.e., exclusivity). Today, a substantial number of claims continue to be filed in connection with competition infringements in the fuel retail industry.

Fuel retail
These actions have been mostly brought by fuel stations (retailers) against the large oligopolistic suppliers (REPSOL, CEPSA, BP and GALP); in some cases, as a response to lawsuits brought by suppliers against retailers for breach of contract. Thus, retailers argue that their contractual relationships are null and unenforceable on competition grounds (because of the extended duration of the exclusivity contract or because there was indirect RPM). The "fuel retail" claims are best considereded as hybrid or mixed follow-on and stand-alone cases "because they do not technically qualify as follow-on cases because the facts at issue are essentially different, but where the parties heavily rely upon previous decisions of the Spanish Competition Authority (NCA) -or less frequently, the European Commission (EC) which seemingly have played a decisive role in triggering the action" 17 . Given numerous complex legal issues raised in these procedures, Spanish Courts requested the EUCJ seven preliminary rulings concerning the scope of application of art.101.1 TFEU to agency contracts 18 , the requirements of the Vertical restraints Block Exemption Regulation (EU regulations 1984(EU regulations /83 and 2790(EU regulations /1999 19 , the application in that context of the de minimis rule 20 and, lately, on the effects in private litigation of commitment decisions of the EU Commission 21 .
7 Working Paper IE Law School AJ8-256-I 15-10-2020 Most of these claims have been dismissed (80% of suits were rejected); and in the few cases in which the courts have accepted them, no compensatory damages were awarded 22 . However, the retail fuel saga has been lately reignited following some 2015 Supreme Court judgments that changed the doctrine held before in the caselaw on the effects of infringements of article 101.1 TFEU in certain clauses in the contract (considering it void as a whole if the anti-competitive clauses were an essential part of it) 23 . Additionally, a new stream of follow-on actions -with the intervention of the litigation fund Therium 24 -has started in the wake of the National Competition Commision (NCC) 2009 decision declaring the infringement by the petrol suppliers REPSOL, CEPSA and BP of article 101.1 TFEU through RPM 25 . These new cases have prompted the request for a new preliminary ruling by the EUCJ on the binding effects of national competition authorities' decisions before Directive 2014/104/UE 26 .

Abuses of dominance
Until recently, a few of the follow-on actions have related to damages caused by abuses of dominance in the telecommunications and energy sectors and in the commercialization of broadcasting football rights.

Telecommunications
Two of the successful damages claims to date involved claims against the former State Owned Enterprise (SOE) Telefónica for the harm it caused by unilateral abusive conduct in certain telecommunications-related markets. There had been other set of damages claims against Telefónica, also to seek compensation for harm caused by abuse of dominance, mainly in follow-on claims. Vodafone (Airtel) sought €670 million as compensation for the exclusionary practices of Telefónica as the incumbent in the mobile phone market to hinder Airtel's entry (a conduct that had been sanctioned before by the DCT 31 ). The claim was apparently settled out of court. Also, a €458 million collective damages claim was filed by the consumers association Ausbanc to compensate for harm suffered by consumers in the retail broadband services market because of price squeezing by Telefónica for which it had been fined by the European Commission 32 . The action was rejected at an early stage on procedural grounds (lack of standing of Ausbanc) 33 .

ENERGY
There have been several successful damages claims in the energy industry; in particular in energy commercialization markets. Indeed, some of the very first antitrust private actions decided by the Spanish courts were claims following DCT's infringing decisions for abuse of dominance in the electricity markets 34 . Also, in a stand-alone case, Endesa was ordered to pay €1 million in damages for the harm caused by an anticompetitive refusal to deal 35 . Moreover, several follow-on claims were pursued by a new entrant in the electricity retail market (Céntrica) against the incumbent operators for an abuse of dominance by electricity 29 The duty to do so had been priorly declared by the National Telecommunications Commission.  Working Paper IE Law School AJ8-256-I 15-10-2020 wholesalers and producers, in respect of which they had already been fined by the NCC 36 . Centrica claimed compensation for the harm suffered in its entrance to the electricity retail market caused by the incumbents' refusal to provide access to some information needed to operate in the market (information system on the supply points). Some of these claims have been dismissed on various grounds 37 , but some of them have been accepted 38 .

Football Broadcasting Rights
Other court rulings have been pronounced in damages claims relating to abuses of dominance (exclusivities or excessive pricing) in the sale of broadcasting football rights. After the DCT fined the Spanish National Football League in 1993, Antena 3 TV claimed damages that were initially awarded by the court of instance (€25,5 million on profits lost in advertising income) but that were ultimately rejected by the appeals court (deeming them "profit dreams") 39 . More recently, there has been a successful stand-alone claim by cable TV channel, Cableeuropa, where the court has awarded €30 million plus interest in compensation for the excessive prices charged by the owner of broadcasting rights (Audiovisual Sport SL/Sogecable SA) 40 .

Cartels
The Spanish experience regarding damages claims in cartel cases is rather limited. Whereas stand-alone actions are feasible (in some other types of infringement: vertical restraints and abuse of dominance), these are hardly viable in cartel cases, where for practical reasons the prior declaration of an infringement by the competition authorities is needed (i.e., they're always follow-on). Indeed, until the adoption of the Defence Competition Act in 2007, followon private claims could only be filed once that decision was confirmed by courts, and this could delay their initiation for around ten years.

3.3.1.The leading case: industrial sugar cartel
The 1995 sugar cartel prompted the first follow-on cartel damages' claim to reach the Supreme Court 41 . The Supreme Court rulings in this case clarified some aspects regarding private damages' claims, for instance in relation to the binding effects of decisions by public enforcers, legal grounds for liability, harm quantification, passing-on defence and interests 42 . Damages awards were based on the estimated costs of the cartelized firms, by calculating the share of the price increase which was not caused by any increase in costs 43 .

Follow-on claims in cartel cases
The institutional structure for the enforcement of competition law in Spain was modernized in 2007, with the creation of the National Competition Commission (NCC) 44 . A leniency program was introduced and the powers of inspection of the NCC were strengthened 45 . These are important factors in explaining the increase in the number of cartels found and sanctioned by the NCC thereafter. Not only did the number of cartels uncovered grow significantly after 2007, nearly trebling in comparison with the prior experience of the DCT, but the cartels that were uncovered had a broader scope and were of longer duration 46 . In addition, NCC decisions further eased follow-on claims by providing ample evidence and data on the effects that the declared infringements had in the market, furnishing valuable supportive information to facilitate claims by alleged victims (particularly to identify and quantify the harm). Nevertheless, lack of public records on damages actions registered with the competetent commercial courts makes it difficult to know about their existence, as eventually they are made public only once a judgment is issued 47 . For example, following the complaint by a basketball 41

11
Working Paper IE Law School AJ8-256-I 15-10-2020 team (Club Baloncesto Tizona SAD), the Spanish Association of Basketball Clubs (ACB) was found to have infringed competition law through the imposition of disproportionate, inequitable and discriminatory economic and administrative conditions upon those teams that had earned promotion to League ACB on sporting merit 48 . The complainant announced it would file damages claims against the ACB 49 , and apparently other teams that might have been harmed have followed suit 50 .

Paper envelopes
A paper envelopes' cartel that operated in the Spanish market was fined €44 million by the NCC 51 . The infringement occurred in the envelopes' cartel, which had simultaneously been uncovered by the European Commission and the Portuguese Competition Authority 52 . It was a market allocation and bid-rigging cartel from 1977 to 2010, though occasionally the cartelists also fixed prices. Accordingly, damages quantification was not as clear-cut an exercise as when it occurs in pure price fixing conspiracies 53 .
To date, at least eleven follow-on actions have been filed in court of which ten have been successful on appeal 54 . The provincial courts of Madrid and Barcelona vary in their estimation of the overcharge: both appeal courts agreed that the cartel caused harm to the claimants, but came to different conclusions regarding the amount of the overcharge (20% in Barcelona,9,4% in Madrid) 55 . It is expected that the Supreme Court will finally settle the matter in these cases, but until that happens one could anticipate that the success of victims in the claims filed so far may incentivise new claims being brought to court.

Decennial insurance
In 2011 the NCC hit on a cartel in the real estate insurance market (decennial insurance) . Decennial insurance was made mandatory by law in 2000. The cartel involved three insurers and three reinsurers. The decision of the NCC even made a rough estimation of the harm that the cartel had caused during the six years it lasted (€282 million) 56 . Upon judicial review, the amount of the total fine was reduced in half (from €120,7 million to €61,47 million) and the decision was annulled in relation to two of the companies (MAPFRE and Münchener) 57 . Initially, building construction companies were those assumed to be directly harmed by the cartel, which allegedly caused an increase in the price of insurance 58 , but the first successful damages action was filed by a rival insurer, obtaining €3 million, for the boycott and its exclusion from the market 59 . However, there seem to be more pending claims in court 60 .

Car manufacturers and Car distribution
Two leniency applications by Seat SA exposed a seam of anticompetitive practices in the Spanish auto distribution industry. Firstly, a global exchange of information involving twenty one manufacturers and two consulting firms that operated from 2003  and circa one hundred distributors were sanctioned by the NMCC 62 . Thirdly, Information found in the inspections conducted at the premises of a consulting firm who operated as "mystery" shopping in charge of controlling compliance with the coordination of discounts and commercial campaigns (ANT Servicalidad SL) set by the cartel led to the discovery of six additional cartels in the distribution of cars involving Chevrolet 63 , Hyundai 64 , Land Rover 65 , Opel 66 , Toyota 67 and Volvo 68 . After those decisions were published, follow-on damages claims against the infringers were initiated by many of those who bought cars of those brands during the infringement period. Initially there was a major collective claim organized by OCU (Organización de consumidores y Usuarios), which allegedly gathered the interest of 160.000 victims 69 . Then, several individual claims were brought before different courts. Almost all of them have been dismissed, mainly due to lack of proof of harm 70 , but also because of lack of standing of the claimant 71 , or because the relevant NMCC decision had been appealed in court 72 .

School Books Publishers
A school book cartel organized by the main association of school textbook publishers (Asociación Nacional de Editores de Libros y Materiales de Enseñanza-ANELE) and 34 member publishers was sanctioned by the NMCC in 2019 with fines totalling €33,88 million 73 . The infringement involved the fixing of prices and other commercial conditions (through the Code of Conduct of the association) and delaying and making more expensive the use of digital books (from 2012 to 2018). News reports refer to a collective claim started by the Madrid Federation of Associations of student's parents Francisco Giner de Los Rios 74 , and the information publicly available to join the claim says the cartel overcharge would be not less than 32% 75 .

Railway Electrification and Electromechanics
A leniency application by Alstom lead to the uncovering of three bid-rigging cartels in the public procurement of the electrification and electromechanics infrastructure of conventional and high-speed railway managed by the State Owned ADIF (Administrator of Railway Infrastructures) in different time periods ranging from May 2002 to November 2016 76 . Fifteen companies and fourteen directors received fines of over €118 million. Not long after the NMCC decision was made public, ADIF announced the filing of claims to obtain compensation for the harm caused by these cartels 77 . In the meantime, it has been reported that ADIF has decided to retain 10% of the price on the pending contracts with the cartelists 78 , and it has introduced in future contracts penalty clauses with punitive damages up to 10% of the price of contract in case of fraud or anticompetitive behavior by its suppliers 79 .
15 Working Paper IE Law School AJ8-256-I 15-10-2020 A damages action in this case was filed early on 2016 82 following the first decision of the NMCC, but the impact the public enforcement fiasco may have on these claims remains, as yet, unclear. This was a buyer cartel, which reduced the price farmers received for raw milk (estimations of the harm range from €0'01 to €0'03 per litre of milk). Interest by potential claimants was revived following the second decision adopted by the NMCC in 2019, with the press reporting that several claims are being organized, and litigation funds providing financial support to some of them 83 .

Trucks' manufacturers
Although a relatively recent 'case', which is currently being litigated in the commercial courts across the country and elsewhere across the EU, the trucks' manufacturers cartel provides the best example of the status quaestionis of antitrust damages claims in Spain. As is widely known, it involves litigation against the six trucks manufacturers that were involved in a cartel that monopolized the medium and heavy trucks European market for fourteen years (1997)(1998)(1999)(2000)(2001)(2002)(2003)(2004)(2005)(2006)(2007)(2008)(2009)(2010)(2011). The cartel was uncovered by a leniency application by MAN, and led to heavy fines imposed by the European Commission on DAF, Daimler, IVECO and Renault/Volvo, SCANIA (€3.810 million) 84 . Together with Germany, Spain is one of the jurisdictions in which most claims have been filed in the courts to date, and there have already been a considerable number of rulings by the Spanish courts. Indeed, the number of judgments in trucks-related litigation (including appeal judgments) is well above 300, making it probably the most widely litigated private antitrust damages case in Spain to date. Most of the judgments have ruled in favour of the claimants (81% of suits), although there is considerable divergence among the courts' rulings regarding the level of the overcharge and, consequently, of the amount of damages awarded 85 .

Conclusion
Although private enforcement of competition law has long been possible in Spain, there has been a recent upsurge in the volume of antitrust damages claims in the courts' dockets. The uncovering of several cartels by both the European Commission and the Spanish competition authorities has prompted a series of follow-on damages claims. Until now, the lawsuits have been decided within the framework of traditional tort law, which has been construed by the Spanish courts in a way to accommodate the particular issues characterising these claims. Supreme Court opinions on the damages claims in the sugar cartel have become influential for the lower courts at least until the the new rules implementing Directive 2014/104/EU are applicable. There is ongoing controversy regarding the transitory 82 See "Juzgan en Granada a cuatro lácteas por posible 'cártel' para pactar precios" La Vanguardia 28/9/18 (€8,6 million claim by SAT San Antón). 83 See "Hausfeld Pairs Up With Madrid Firm To Target Milk Cartel" CPI 9/6/20. 84 See Decisions of 19/7/16 (AT.39824 -Trucks) and 27/9/17 (AT.39824 -Trucks). 85 See F. Marcos "Primeras sentencias de las Audiencias provinciales sobre los daños causados por el cártel de fabricantes de camiones" RCDC 26 (2020).