Apr 23, 2018
This paper provides an empirical study of private enforcement of competition law in Spain from 1999 to 2012. So far, the Spanish literature on competition law private litigation is based on qualitative assessments and analysis of some key cases, but has not discussed all cases in depth.
Therefore, by broadening the scope of the inquiry, this paper aims to contribute to the policy discussion on the effectiveness of private enforcement of competition law in Spain. It gives a clearer picture of how private competition litigation is evolving in Spain. Any legal intervention or other policy decisions in this area should be based on an investigation of what is going on, what is working and what is not working in private litigation.
Evidence produced in this paper challenges the traditional view that private litigation in Spain is underdeveloped, amounting only to a few noted cases. The number of cases reported here suggests otherwise: there are many more private claims than previously thought, making the Spanish experience somehow comparable to that of certain other EU Member States.
Nevertheless, although the case-law reported here depicts an evolution of private litigation, with a conspicuous growth in the last five years; that should not be taken as meaning we already have a mature private competition system. Many court opinions (and lawyers’ pleas) still demonstrate some confusion of the aims of competition law, occasionally mixing it up with unfair competition law (and even, consumer protection law).
On the other hand, private competition litigation in Spain has particular features that this paper aims to describe.
Most of the litigation involves conflicts in contractual settings and lawyers have cunningly thrown in competition law as another argument in disputes. However, many of the anti-competitive claims are flimsy or simply inappropriate. In general, courts have done a good job rejecting meritless or unsubstantiated pleas.
Therefore, criticism of judicial performance in private competition litigation (based on the theoretical complexity of cases and lack of preparation) is in most of the cases unfounded and unwarranted. Judges have displayed considerable pragmatism in rejecting the strategic misuse of competition law.
On the other hand, the case-law reported here also challenges the view that private enforcement of competition law has mainly a compensatory aim. Although some competition claims request damages, most of the remedies awarded by judges are declaratory (of unlawfulness/nullity). Naturally, in the few cases where pecuniary claims have been argued, the normal issues issues of effectiveness, proof and quantification of harm have arised.
Finally, the paper shows consumer group litigation to be still absent in the competition law arena. Available mechanisms for collective and representative claims, strongly reliant on opt-in by potential victims may be too burdensome or rigid. Enhancing collective redress seems to be a major loophole in the current competition law system and some flexibility may be necessary to make them more attractive and operational.
Global Competition Litigation Review, 2013, Issue 4: pages 167-208.