The Pérez-Llorca/IE Chair on Commercial Law debates the future of competition infringements

As part of the Pérez-Llorca/IE Chair on Commercial Law, a seminar was held to discuss the judicial review of the standard of proof in matters of competition infringements from two perspectives, public and private.

The session, opened by Soledad Atienza, Dean of the IE Law School, was attended by Borja Villena Cortés, Judge of the 28th Section of the Madrid Court of Appeal; Santos Gandarillas Martos, Senior Judge of the 6th Section of the Spanish High Court; Jorge Masía, Competition Counsel at Pérez-Llorca, and Jesús Cudero, Tax Of Counsel at Pérez-Llorca and Senior Judge on leave of absence from the Spanish Supreme Court.

Jesús Cudero opened the session by stressing in his speech that “for a sector of scientific doctrine, the quasi-criminal nature of sanctioning procedures should lead to a standard of proof similar to that used in the criminal sphere, which would require proving the corresponding company’s involvement in anti-competitive practices to the fullest extent possible, to the exclusion of all doubt”. Likewise, Cudero explained that “another doctrinal sector advocates a standard of a civil nature, something similar to the balance of probabilities or preponderance of evidence, which is widely used in British-style systems”.

Jorge Masía then opened a round of questions with the aim of understanding the Spanish courts’ approach to the standards of proof in competition infringements in the public and private spheres. In relation to the number of Spanish High Court rulings confirming the CNMC’s resolutions, Pérez-Llorca’s Counsel pointed out that “in 2020, of the 91 rulings that there were, only 53 confirmed the CNMC’s analysis of conduct”.

On the same subject, Santos Gandarillas stated that “the trend is that more appeals are now upheld than a few years ago, and that within the same CNMC resolution it is difficult for there to be different proceedings, although this may happen”. On the other hand, the first commercial court has seen an increase in the number of follow-on actions and sanctions imposed by the CNMC, with various cartels such as the sugar cartel and the paper envelopes cartel reaching this court.

The session also covered a number of other issues, such as the impact of the civil sphere’s tendency to call any conduct a cartel, as well as whether there are differences when faced with a resolution that is configured as a cartel with respect to one of a different kind. On the latter issue, Gandarillas stated that “under no circumstance is the filtering of evidence conditioned by whether or not it involves a cartel, as the principles of sanctioning are unique”. The senior judge also wanted to emphasise that “in many cases the evidence is circumstantial, but the requirement of the principles of punitive law must be carried out to the letter”.

Restrictive conduct by object

Another of the issues raised during the session was how to approach the analysis of so-called restrictive behaviour by object from the public and private spheres. Competition law anticipates defence barriers to cartel activities and therefore covers infringement both by object and by effect. In terms of the application of private law, the problem is that, in classifying an infringement, both in terms of by object and by effect, we could find ourselves with a barrier that is too far ahead of the civil damages that may be incurred.

During the discussion led by Jesús Cudero and Jorge Masía, the speakers responded to questions on different issues, such as the decreasing trend in leniency applications filed with the competition authorities, the joint and several liability of infringers, and the extent to which a judicial decision is delayed when precautionary measures are requested in the framework of an appeal for judicial review.