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General introduction to the legislative framework for private antitrust enforcement

i Legal framework

The declaration of a competition infringement may be based on EU law (Articles 101 and 102 TFEU) or Spanish competition law (Articles 1 and 2 of the Competition Act). Both regulations are substantially identical, and their scope depends on the market affected, that is, whether it involves trade between EU Member States or within the domestic market, respectively.

Regarding civil claims arising from antitrust infringements, Spanish civil law offers the following possibilities:

  1. if a claim seeks the nullity of a contract, this purpose will be based on Article 6.3 of the Civil Code, and the economic consequence of such nullity will imply the reciprocal restoration of the economic contributions made by the parties (Article 1.303 of the Civil Code); and
  2. if a claim seeks damages on a non-contractual basis, Article 1.902 of the Civil Code has historically been the legal provision commonly used when claiming compensatory damages caused by an antitrust infringement, either as a follow-on or stand-alone action.

However, since the entry into force of Royal Decree-Law 9/2017, approved as a consequence of the Damages Directive, the new Title VI of the Competition Act provides claimants with a new and complete framework for antitrust claims that encourages the filing of claims as a way of deterring undertakings from competition law infringements.

The new regulation provides multiple provisions to strengthen the position of claimants, such as:

  1. an increase of the time-barring period;
  2. the presumption of harm where a cartel has resulted in fines;
  3. the joint and several liability of all the offenders; and
  4. the binding effect of the decisions of the Spanish Competition Authority.

Finally, non-compliance with the competition law can also be regarded as unfair competition under Article 15 of the Unfair Competition Act, which could lead to an action for damages specified in Article 32.1.5 of the Act.

ii Jurisdiction

Damages claims for antitrust infringements are filed before commercial courts, which are specialised civil courts that only deal with some commercial issues. Moreover, in big cities like Barcelona and Madrid, these types of claim are only judged by specialised commercial courts.

There has been some controversy about the jurisdiction of the commercial courts when there is a follow-on claim that is based on a final decision by a competition authority, as some believe that these claims should not be different from other civil compensatory claims, which go to ordinary civil judges.

However, since a judgment issued by the Provincial Court of Madrid of 22 June 2017, the debate appears to have been closed in favour of the commercial courts' jurisdiction in both follow-on and stand-alone antitrust claims for damages.

iii Limitation periods

Claims seeking the nullity of a contract for antitrust infringements are limited to four years under Article 1.301 of the Civil Code.

Nevertheless, actions for damages that follow a non-contractual approach can benefit from the new prescription period of five years stated in the Competition Act, which is rather longer than the previous prescription period: if not for this new regulation, damages claims for antitrust infringements would still have the same limitation period as other damages civil claims in Spain, which is one year (except in Catalonia, whose Civil Code provides a three-year limitation period for non-contractual claims).

In any case, following Article 74 of the Competition Act, the prescription period only begins to run when an infringement is over and the claimant knows or could have reasonably known about the unlawful conduct, the damages caused and the identity of the infringer.