Competition Update. Damages claims arising from competition infringements

This latest seminar focused on damages claims. On 27 May, Royal Decree-Law 9/2017, of 26 May entered into force, by implementing, among others, Directive 2014/104/EU, which regulates damages actions resulting from infringements of competition law.

The implementation of this Directive establishes a new panorama that facilitates the exercise of actions by individuals or companies detrimentally affected by an infringement of competition law in order to obtain full compensation for damages. Consequently, both Spanish Competition Act 15/2007, of 3 July, and Act 1/2000, of 7 January, on Civil Procedure have experienced significant changes.

Oriol Armengol, Partner of the Competition department at Pérez-Llorca, introduced the new legislation and explained how its intention is to make it easier for individuals affected by infringements of competition law to make damages claims. In Armengol’s opinion, this legislation will probably lead to the creation of law firms specialising in these kinds of claims, in the same way as with bank claims.

Following on from this, Jaime de Blas, senior Competition lawyer at Pérez-Llorca, discussed some of the most notable matters in this regard, some of which have already been enforced following the Supreme Court judgment on the sugar cartel, published exactly four years ago.

In particular, de Blas highlighted the general application of joint and several liability among infringing companies, the introduction of a rebuttable presumption for the existence of damages in cartel cases and the changes to the definition of this legal concept. De Blas also spoke about the establishment of a limitation period of 5 years for filing claims for damages, which raises potential concerns over when to start calculating this term. De Blas finished his presentation by highlighting aspects relating to evidence, quantifying the damages and to matters regarding the passing-on of overcharges.

Lastly, Javier García Marrero, Litigation and Arbitration Counsel at Pérez-Llorca and Senior judge on leave of absence, addressed the procedural issues arising from the Royal Decree, such as the possible impact that the application for access to sources of evidence might have, as well as jurisdictional matters due to the subject-matter of the dispute, or standing, among others. Furthermore, García Marrero pointed out the difficulties the defendant might encounter, in relation to the evidence of passing-on, or in answering the claim on time in the event of group actions.

The session drew to a close with a round of questions on various issues, covering topics such as the calculation of limitation periods and possible courses of action in order to be able to answer the claims by the deadline.