The Spanish Supreme Court has awarded a group of sugar purchasers a total of €4.1 million for damages suffered as a result of anticompetitive overcharges caused by a sugar cartel active in Spain from 1995 to 1996. The cartel had been fined in 1999 by the Spanish Competition Authority (SCA). The case provides a good example of consideration by a court of key issues which arise in EU private litigation.

As part of its analysis, the court confirmed that the passing-on defence applies under Spanish law. However, the court found that the burden of proof lies with the defendant (the cartelists). The defendants need to prove both that the claimants passed-on the overcharge down the supply chain to their customers and that they had not suffered a reduction in their volumes of sales as a consequence.

The court also confirmed that the claimants’ “but for” analysis, a comparator-based before-and-after model, was appropriate to assess their quantum of damage. The defendants’ expert report was inadmissible since it claimed there had been no damage, despite the findings of the SCA that a cartel existed, which had been implemented. Since the only acceptable economic evidence was therefore that of the claimants’ expert, the court awarded the full amount claimed (€4.1 million).

Private enforcement of the antitrust rules continues to increase in the EU, so similar issues arise in other jurisdictions. This includes the UK, where many follow-on actions based on cartel infringements are filed due in particular to the beneficial discovery rules in that country.