Spanish Supreme Court sets first damages for truck cartel at 5%

After several years of uncertainty for those claimants affected by the truck cartel in Spain, the Supreme Court has endorsed what most Spanish provincial courts and commercial courts had been ruling, declaring that collusive agreements were aimed at fixing prices and gross price increases in the European Economic Area (EEA) and were not simply an exchange of information.

The Supreme Court's judgments consider that it is in accordance with the law that the courts presumed that, given the duration of the cartel (14 years), its geographical scope (the entire European Economic Area), a market share of approximately 90% and the object of the collusive agreement, the cartel caused real damage to truck purchasers.

The Supreme Court rejected the cartelists' main defence arguments, also referring to the existence of discounts in marketing which, according to them, would neutralise the existence of any overpricing. The Supreme Court stated that it had not been proven that the discount policy had arisen as a result of the cartel, so that, on the basis of a higher gross price attributable to the cartel, the final price would be higher, despite the existence of discounts.

With regard to the quantification of the damage and the possibility of judicial estimation of the same, to which several courts have resorted, the Supreme Court stated that the power of the judge to estimate the damage was already recognised in the Spanish legal system before the entry into force of the so-called Damages Directive, due to the principle of indemnity of the injured party as provided for in article 1902 of the Civil Code and 101 of the Treaty on the Functioning of the European Union.

The Supreme Court also determined, following the last CJEU Judgment of 13 February 2023, that the insufficiency of the expert report to prove the amount of the damage to some of the plaintiffs, or the fact that the defendant and third parties were not asked to produce evidence does not necessarily mean, in those cases, that the lack of proof of the amount of the damage is attributable to their inactivity and that this would prevent quantification by means of a judicial estimate.

Specifically, in the cases resolved by the Supreme Court in this block of 15 judgments, the Tribunal deemed correct the lower Courts' estimation of the damage (overcharge) at a percentage of 5% of the purchase price of the truck, since the expert evidence submitted by the claimants in these cases were based on academic and statistical studies, largely founded on the so-called Oxera study of 2009, which was commissioned by the European Commission. The Supreme Court considered that these studies were carried out for purposes other than the specific quantification of damage, and that their conclusions could not simply be extrapolated to any case (regardless of the characteristics of the cartel and the products affected) by reference to a weighted average.

However, the Supreme Court does not establish this percentage as a fixed amount for all proceedings relating to this cartel, admitting that it is possible to prove that the amount of the damage is higher or lower than this estimate. Therefore, with regard to the quantification of the damage, the expert report submitted in each case is and will continue to be absolutely decisive.

Finally, regarding interest, these judgments consider that it should be paid from the time the damage occurred, that is, the payment of the price of the truck, because it is a necessary measure for full compensation.

Osborne Clarke comment

The relevance of these Supreme Court rulings lies in the fact that the declaration of the existence of an anti-competitive practice that has caused damage to truck purchasers has been made in rulings that are final. This means that pending litigation will focus solely and exclusively on the quantification of the extra cost, simplifying the procedures.