Amendment to the Spanish competition law

Draft Bill to transpose to the Spanish legislation the content from Directive 2014/104/UE of the European Parliament and of the Council, of 26 November 2014, on some rules regulating actions for damages under national law, for infringing competition laws in Member States of the European Union.

In December 2014 a European Directive that regulated the actions for damages that could be carried out by those harmed by anti-competition practices (the “Directive“) came into effect, giving Member States until 27 December 2016 to transpose it to their national laws. The Ministry of Justice has recently published a Draft Bill concerning this issue (the “Proposal“), prepared by the General Codification Agency, which aims to modify the Competition Act (the “CA“) and the Civil Procedure Act (the “CPA“), including and, in some instances, adding to the content of the Directive.

A. Competition Act

The Draft aims to introduce new Title VI to the CPA, related to paying damages to anyone harmed by restrictive competition practices. The most relevant features of this new Title VI are:

Joint and several liability: Unlike the current regulations, which do not presume that members of a union are jointly and severally liable provided that the infringer is identified, in the Draft Bill, as set out in the Directive, any companies, associations, unions or groups of companies that have jointly infringed competition rules, will be jointly and severally liable for compensating the harm caused by said infringement.

Also, in relation to this new Title VI, the unlawful conduct of a company may also be imputed to any legal and/or natural person that controls it, unless the financial conduct of the first one is not determined by the latter.

Limitation periods: The Draft Bill also aims to set out that the action to demand liability for damages suffered as a result of infringing the CPA will prescribe within five (5) years.

Likewise, the Proposal sets out the calculation of the limitation period. This period may start once the infraction of the competition right has ceased to exist and the claimant has knowledge, or may have been aware, of the following cumulative circumstances: that the behaviour constituted an infringement of the right of competition, that the infringement has caused harm and the identity of the infringer.

The limitation periods will be interrupted if a competition authority begins an investigation or a sanctioning procedure related to the infringement of the right of competition.

Also, the initiation of an extrajudicial settlement for claiming damages as a result of not complying with the right of competition will interrupt the period of limitation. However, this interruption will only be applied to those parties involved in an extrajudicial settlement.

Extrajudicial settlements: The Proposal also considers the effects of an extrajudicial settlement on the right to be compensated for damages. In this respect, an injured party who has been part of an extrajudicial settlement will see his/her right of compensation reduced to the terms agreed to in the settlement. In this case, the injured party may be able to act only against the other infringers.

B. The CPA

Concerning the amendment to the CPA, the Proposal would add a new Section 1 bis in Chapter V, related to the general provisions of the evidence, on how to access the sources of the evidence.

Under their responsibility, any claimant or defendant may ask the court to adopt the necessary measures to access the sources of the evidence held by the other party or by a third party.

The court may not set out these measures of their own accord, nor will it be able to approve measures which are costlier than the ones requested by the claimant or the defendant.

The measures that may be requested are those that the court believes would allow the requesting party to access documents, devices that reproduce words, sounds and images, devices that allow filing and knowing or reproducing words, data, figures and/or mathematical calculations, carried out with accounting or other purposes, expert reports, witnesses, individuals who, as a party, may be cross-examined and judicial recognition.

Additionally, and without prejudice to the above measures used to access sources of evidence, the Proposal goes further than the Directive as it establishes that, in procedures for the protection of intellectual and/or industrial property rights, a number of specific measures may also be requested: data related to the infringer, the origin and the distribution networks of the works, presentation of banking, financial, commercial and customs documentation, identification of the provider of a service of the information society and identification of the user of a service of the information society.

The information obtained through the measures allowing access to the sources mentioned in the above paragraph will be used exclusively for the jurisdictional protection of intellectual and/or industrial rights, and it may not be disclosed or notified to any third parties.