Commentary Antitrust and Litigation & Arbitration 1-2017
Transposition of the European Union Directive on action for damages for infringements of Competition law
On May 27, 2017, the Official State Gazette (“BOE”) published Royal Decree-Law 9/2017, of May 26, 2017, transposing into Spanish law various European Union directives in the financial, corporate/commercial and health fields, and on the assignment of workers (“RDL 9/2017”), one of which is 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 “Directive”).
Article Third of RDL 9/2017 makes an amendment, on the substantive side, to the Spanish Competition Law, 15/2007, of July 3, 2007 (“LDC”), with the addition of a new Title VI on compensation for the harm caused by restrictive practices in competition; and Article Fourth makes an amendment, on the procedural side, to the Spanish Civil Procedure Law, Law 1/2000, of January 7, 2000 (“LEC”), with the addition of a new article 283 bis designed to give access to evidence in proceedings in which compensation is claimed for damages caused by infringements of competition law provisions.
This regulation will apply to any action for damages for infringements of competition Law which is brought in Spain, regardless of whether the infringement had been held to exist by the European Commission or the Court of Justice of the European Union, or by a national competition authority or national court (Spanish or of any other EU member state).
Under Transitional Provision One: (i) the substantive amendments made to the LDC (such as extension of the limitation period or the rules on presumptions) will not be enforceable retroactively; and (ii) the new rules on access to the sources of evidence in the LEC will apply to the court proceedings that commence after its entry into force.
It must be kept in mind, however, that the Royal Decree-Law has to be validated by the Lower House of the Spanish Parliament and the Spanish parliament may deal with these provisions in a bill of law, which could mean that the articles in RDL 9/2017 could be amended further down the line.