Spain: CNMC works on a guide on quantification of damages for Competition Law infringements

The Spanish Competition Authority ("CNMC") is working on a comprehensive Guide on the quantification of damages resulting from Competition Law infringements. The purpose of this Guide is to complement the European Commission’s guidelines on this matter and to facilitate the process to quantify this kind of damages. Practical experience has proved that this generally constitutes a very controversial matter.

The CNMC has opened two public consultations so far seeking the views of anyone interested in this Guide (the first was opened in October 2021 and the last one in September 2022). On 25 January 2023, the CNMC published a summary of the main highlights of the latest contributions received.

Context and background

Since the issuance of the Damages Directive of 2014 (Directive 2014/104/EU), which was transposed into Spanish law in May 2017, private enforcement of Competition Law has significantly increased.

The Directive, together with the European Commission practical guidelines[1], has been key to the drive of private enforcement of Competition Law. For national courts, it has shed some light on quantifying this kind of damages and estimating the share of overcharge which was passed-on to the indirect purchaser (which is commonly known as “passing on”).

In Spain, national courts have been particularly active in addressing these types of claims over the last few years. However, the quantification of such harm is not always a straight-forward endeavour and there is still no consistent approach in this regard.

Therefore, the CNMC’s Guide is expected to both complement and clarify the European texts on quantification of damages by bringing together all this rich experience and providing some solutions to the most problematic issues found in practice.

Draft Guide’s salient points and main contributions

The CNMC has received a number of contributions from very different backgrounds (including academic profiles, economic consulting firms and even from a regional competition authority), which make clear the need to provide additional practical guidance regarding such a complex issue as the quantification of damages.

The current version of the Draft Guide points out some general aspects that have been found relevant in practice to the quantification of damages, such as the following:

• It clarifies that both collusive agreements (regulated in Arts 101 TFEU and Art. 1 Spanish Competition Law or “LDC”) and abuses of dominance of (Art. 102 TFEU and Art. 2 LDC) may give rise to compensable damages.
• The CNMC also distinguishes between damages caused by a price increase - which usually produce vertical effects - from damages caused by exclusionary conduct - which are less common in practice and normally lead to horizontal effects.
• The Guide evaluates the possibility for defendants to avoid liability against claims for damages by arguing that such damages would have been passed to downstream retailers and consumers.
• The CNMC states that the parties tend to have asymmetric information and it is, therefore, necessary to correctly regulate access to this information, by establishing adequate and proportional limits to that access in order to protect, among other things, confidential information.

In relation to the expert reports, the CNMC highlights the importance of carrying out its own independent study of the magnitude of the…