Thursday, August 28, 2014

Damages Claims for Breach of Competition Law in Spain

Fernando Cachafeiro, University of Coruna discusses Damages Claims for Breach of Competition Law in Spain.

ABSTRACT: The paper analyses current case law on antitrust damages claims in Spain. It compares existing national rules with draft rules enacted by the European Commission. The study of Spanish jurisprudence shows that there is substantial agreement on a number of relevant issues, such as the effects of final decisions by the national competition authority; the right to full compensation which includes actual loss and loss of profit; the availability of and requirements for the passing-on defence; the dates that determine the start of the limitation periods; or consumer associations’ standing to sue.

There are also major discrepancies: there is no rebuttable presumption of damages in cartel cases; some inconsistencies in determining the value of the loss of profit may arise; interest is paid from the date of the claim; joint and several liability is difficult to find; and the limitation period is one year, among others.

The alignment of Spanish Tort Law with the European Commission proposals can be accomplished by the mere action of Spanish courts when given the opportunity to resolve damages claims for the breach of Competition Law. The Ebro Foods judgement, where the Supreme Court substantially endorsed the European Commission’s doctrine on the passing-on defence, is a good example of this way of thinking. On other occasions, however, Spanish particularities have a solid legal base and thus significant legal amendments will be required.

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