Spanish transposition of EU Directive on antitrust damages claims

The Spanish Ministry of Justice has published the Bill for the Transposition of Directive 2014/104/EU, of the European Parliament and of the Council, of 26 November 2014, on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

The Spanish Ministry of Justice has recently published the Bill drafted by the Special Section for the Transposition of Directive 2014/104/EU on antitrust damages claims across the Member States of the European Union (“the Bill” and “the Damages Directive”, respectively).

The Damages Directive was published in the Official Journal of the European Union on 5 December 2014. This new legislation is designed to help victims of anti-competitive behaviour to sue for damages in national courts across the EU. The deadline for transposition into national law across all EU Member States is 27 December 2016.

It has been over a year since the Special Section was established in the General Codification Committee and, although it has now published the Bill, there is still no certainty that Spain will transpose the Damages Directive on time, given the predicament of the current government. Further, the parliamentary process of this Bill has not even begun yet, since, beforehand, this first text must be approved by the Council of Ministers, who may introduce amendments. Then comes the moment when the Bill will be moved to Parliament, where it will have to be scrutinised by both chambers.

The Bill adopts the Damages Directive on a point by point basis, but it has gone even further in certain respects. Regarding the amendments to the Spanish Competition Act (the LDC), the following points are particularly noteworthy:

• The Bill not only provides for the application of the new regulation to the infringements arising from Articles 1 and 2 of the LDC (equivalent to Articles 101 and 102 TFEU, to which the Damages Directive refers), but also from Article 3, which contains the prohibition of distortion of competition through unfair acts (no equivalent provision in EU legislation), and for which the Unfair Competition Act already provides a concrete action for damages.
• The Bill contains an express provision for the liability of parent companies in damage claims, which until now was only expressly provided for in disciplinary proceedings before the competition authorities.
• As required by the Damages Directive, the Bill incorporates the principle of joint and several liability for companies that have jointly participated in infringements of competition law.
• On limitation periods, the Bill incorporates the approach prescribed in the Damages Directive, which sets a deadline for five years from the date the infringement ceased. This will represent a major change to Spanish law. Currently, the general term for the exercise of tort actions in Spanish law is one year from date that the claimant knew, or could reasonably have known, the facts giving rise to a claim.
• The Bill goes beyond the Damages Directive regarding the effects of decisions of competition authorities or courts in other Member States. The proposal in the Bill is that these decisions will have the same status as decisions of the Spanish antitrust authorities and will therefore constitute irrefutable evidence for an action for damages brought in Spain.

In general, the current text of the Bill is ambitious and has a clear structure and objectives, entirely aligned with those of the EU. Several of the proposed new rules which will apply to antitrust litigation could ultimately provide a basis for reform for the Spanish legal system as a whole. In particular, the extension of the limitation period to five years could be extended beyond competition law to all damages claims brought in Spain.

By way of wider context, it is worth noting that it is not only in Spain where there are concerns that the deadline for transposing the Damages Directive may be missed. At a recent conference, a European Commission official noted that governments across the EU are limping along in their efforts to implement the Damage Directive. As at the end of February 2016, it appears that only eight of the 28 Member States are the stage of public consultation.