European Judicial Training Network. Barcelona: 20 th, 21 th and 22 th June 2012

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1 Red Eurpea de Frmación Judicial Eurpean Judicial Training Netwrk Réseau eurpéen de frmatin judiciaire Eurpean Judicial Training Netwrk Antitrust Damages, Eurpean Cmpetitin Law and Judges: Private and Public Enfrcement. Articles 101, 102 and 107 f TFEU and Natinal Judges (REFJ1224) Barcelna: 20 th, 21 th and 22 th June 2012 Rm 9-10 Spanish Judicial Schl Carretera de Vallvidrera Barcelna Directr f the curse David Ordóñez Slís Dctr f Law Senir Judge. Administrative Curt Number 4 f Ovied Friday, June :00 h. Antitrust Damages Actins and Administrative Authrities as an Amicus Curiae befr Curts Mr. Jaquín García Bernald de Quirós. Judge President f Spanish Cmpetitin Authrity (Madrid) - 1 -

2 "Damages actins fr breach f antitrust rules and public authrity liability" The figure f the AMICUS CURIAE in Spain Jaquín García Bernald de Quirós Barcelna, 22 nd June 2012 OUTLINE OF THE PAPER: 1. Acknwledgements / Initiative 2. Intrductin: Origin and develpment f Private Enfrcement f Cmpetitin Law in Spain (a) Traditin f public enfrcement f cmpetitin law in Spain (b) Milestnes at the start f Private Enfrcement in Spain (c) The refrms intrduced by the Spanish Law n the Prtectin f Cmpetitin 2007 (LCD) 3. The figure f the amicus curiae: hw it wrks 4. Main actins carried ut by the CNC 5. Main issues detected 6. Cnclusins 1. ACKNOWLEDGEMENTS / INITIATIVE - T the Judiciary Schl fr welcming an initiative f s much interest t the judicial cmmunity and law in general. - David Ordóñez Slís Magistrate f Administrative Curt N 4 in Ovied, fr prmting this seminar and frum n the private enfrcement f cmpetitin law. 2. INTRODUCTION: Origin and develpment f Private Enfrcement f Cmpetitin Law in Spain: (a) Traditin f public enfrcement f cmpetitin law in Spain Fr a lng time, the enfrcement f cmpetitin law in Spain was strictly public: The LCD 1989 was an administrative law applied by administrative bdies whse rulings were liable t be appealed in the cntentius-administrative curts.

3 Althugh civil curts have always been cmpetent in nn-cntractual civil liability cases, frmer legislatin Article 13.2 f LCD as well as several judgements STS CAMPSA case 2 f 30 December have made private enfrcement difficult in Spain by restricting claims fr damages arising frm antitrust liability which, in the end, is the best incentive fr cnsidering private actins. Thus, the enfrcement f natinal and Cmmunity cmpetitin rules were clsed t Spain's curts and actin fr the cmpensatin f lsses and damages sustained were restricted (r made a financial and tempral impssibility). N wnder, then, that the private enfrcement f cmpetitin rules in Spain was practically nn-existent. Actually, curt interventin was limited t: (i) Reviewing the decisins f cmpetitin bdies in cntentius-administrative curts; and (ii) Cmpensatin fr lsses and damages by virtue f prir and final declaratins made by the same bdies. Mre than 10 years culd pass if the case reached the Supreme Curt as a last resrt. Examples: Antena 3-LNFP case (Judgement f June 2005 in the Curt f First Instance N 4 in Madrid 3 ); and the Azucarera (ACOR) Case (TDC decisin f 1999 and Prvincial Curt f Valladlid ruling f Octber 2009 granting 1.1 millin eurs f damages). Cmpensatin was als btained under the Unfair Cmpetitin Act (in the Eléctrica Curs, S.A. v Hidreléctrica de l'emprda, S.A. case, fr instance (Prvincial Curt f Girna ruling f 16/4/2002): claim based n Law 16/1989 n the Prtectin f Cmpetitin and the Unfair Cmpetitin Act. Nnetheless, the success f the private enfrcement f Cmpetitin law in the United States, a pineer in the enfrcement f antitrust law (despite sme 1 Specifically, Article 13.2 LDC 1989 requires an administrative and/r judicial final ruling declared by the Curt fr the Prtectin f Cmpetitin (TDC) t claim damages arising frm unlawful practices recgnised and declared by the Curt. 2 The Supreme Curt in the CAMPSA case stated, n the ne part, that it was nt cmpetent t enfrce Articles 101 and 102 (then 85 and 86 f the Treaty) "primarily". On the ther hand, it stated that nly the State Administratin and within it, the TDC was cmpetent t enfrce Articles 101 and 102 TFEU. The CAMPSA dctrine was reprduced in the Supreme Curt rulings f 4 and 30 Nvember 1999, in the UIP and Nissan cases. 3 Cmpensatin f 25.5 millin eurs t Antena 3 fr abuse f dminance by the Natinal Prfessinal Ftball League (LNFP). Fifteen years passed frm the day the cmplaint was presented in the Prtectin f Cmpetitin Service t the day a civil curt granted cmpensatin. Finally, the Prvincial Curt in Madrid annulled the ruling fr lack f sufficient evidence f the damage sustained. 2

4 excesses), has always underlaid Eurpean authrities' interest in prmting private actins fr damage arising frm a breach f cmpetitin rules. (b) Milestnes at the start f the private enfrcement f Cmpetitin Law in Spain It was twards the end f the nineties and beginning f 2000 when the discussin n the benefits f the private enfrcement f cmpetitin rules and the need t prmte it began t gain mmentum. We can pint t several milestnes in Spain and the rest f the EU: Supreme Curt rulings in the DISA (2 June 2000) 4, Mercedes Benz (2 March 2001) and Petrnr (15 March 2001) cases, which crrected the Supreme Curt's errneus dctrine in the CAMPSA case, thereby cnfirming the cmpetence f Spanish civil curts t hear cases related t the civil effects f infringements f cmpetitin rules nullity f cntract, by recgnising: (1) direct enfrcement f cmmunity rules; and (2) apply the principle f interpretatin in accrdance with the natinal law n the prtectin f cmpetitin. The ECJ ruling in the Curage v Crehan case (f 20 September 2001), strengthened private enfrcement f Cmmunity rules. It recgnised the legitimacy f ldging claims fr damages in civil curts, even by individuals wh were frced t enter int a cntract that was cntrary t cmpetitin rules. Curage als recalled that "The full effectiveness f Article 85 f the Treaty and, in particular, the practical effect f the prhibitin laid dwn wuld be put at risk if it were nt pen t any individual t claim damages fr lss caused t him by a cntract r by cnduct liable t restrict r distrt cmpetitin". The ECJ ruling in the Manfredi case (13 July 2006), which cnfirmed the entitlement f any individual, including indirect purchasers, t claim fr damages arising frm a breach f Cmmunity cmpetitin rules under the prcedural rules f the Member States. The ruling als recgnised that lss f prfit cnstituted damage. 4 Specifically, in the DISA case, the Supreme Curt cnfirmed that: "n the cntrary, the Cmmissin des nt have exclusive cmpetence t enfrce paragraph 1 f Article 85 and Article 86. In this respect, the Cmmissin shares its cmpetence in the enfrcement f these precepts with the natinal curts. As said Curt f Justice established in the ruling f 30 January 1974, BRT (127/1973, Appeal page 51), paragraph 1 f Article 85 and Article 86 have direct effects n the relatinships between individuals and generate rights in their favur that the natinal curts shuld safeguard". 3

5 Hwever, the mst imprtant milestne fr the private enfrcement f cmpetitin rules in Spain was the adptin and entry int frce f Regulatin 1/2003: It empwered any cmpetent authrity, whether administrative r judicial, t apply claims based n Articles 101 and 102 f the Treaty (Art. 6 f Regulatin 1/2003); It cdified the principle f unifrm enfrcement (Art. 16 f Regulatin 1/2003), by which curts must nt rule n decisins running cunter t a decisin already adpted by the Cmmissin, and avid giving decisins which wuld cnflict with a decisin cntemplated by the Cmmissin in prceedings it has initiated (it prmtes the stay f prceedings). It als intrduced measures fr crdinatin between cmpetitin authrities and the curts, when Articles 101 and 102 f the Treaty apply (Art. 15 f Regulatin 1/2003); send infrmatin and cpies f rulings and interventins f amicus curiae. The latter are alluded t mre extensively later. Shrtly after Regulatin 1/2003 was adpted, a Cmmunicatin was drafted in 2004 n cperatin between the Cmmissin and the natinal curts fr the enfrcement f Articles 81 and 82 f the Treaty, which replaced the Cmmunicatin f It cntains specific prvisins n the functining f the amicus curiae mechanism. The adptin f Regulatin 1/2003 brught abut an amendment f the Spanish Organic Law f the Judiciary t give the newly created Cmmercial Curts cmpetence t try civil cases based n Articles 101 and 102 f the Treaty. Since then, several issues have arisen. Examples: Cntrversies between petrl statins and fuel distributrs (assuming and rejecting the cmpetitin authrity's dctrine). Other cases: telecmmunicatins (Cnduit v Telefónica) 5, TV (Euskaltel v Sgecable). Since then, several Cmmunity initiatives have been put in place t prmte private enfrcement. Hwever, n definitive text has been adpted t date [Green Bk (2005), the White Paper (2008) and, mre recently, a public survey n the draft guideline prject: Calculatin f the damage in lsses and damage actins fr breaches f articles 101 and 102 (2011). 5 Cmment: Cnduit shuld nt really be cnsidered a case f direct enfrcement f Cmmunity cmpetitin rules, since the claim was ldged under Art f the Unfair Cmpetitin Act. 4

6 (c) The refrms intrduced by the LDC 2007: The reality f private enfrcement The adptin f the new LDC 15/2007 is a watershed in Spain with regards t the Private Enfrcement f Cmpetitin Law. The LDC intrduces certain legislative amendments t facilitate (r even make pssible) private enfrcement in Spain: Art. 16: Cperatin with the curts: The CNC and the AC f the autnmus cmmunities intrduce the figure f amicus curiae, in a manner similar t Regulatin 1/2003, but with regards t Spain's natinal cmpetitin laws. Ntificatin f prceedings t give leave t prceed and f rulings in rder t facilitate crdinatin between curts and the CNC, as well as the pssibility f taking part as amicus curiae. Secnd additinal prvisin: amendment f Law 1/2000, n Civil Prcedure amendment f the Law n Civil Prcedure: Intrductin f a new Art. 15bis (amicus curiae, with special reference t the prtectin f applicatins fr leniency) and mdifies six articles: Art. 212, 404 and 461 sending f rulings t the CNC, acceptance f claims and appeals t higher curts, respectively, in prcedures t enfrce EU and natinal cmpetitin rules ; Art. 249 decisin f claims in an rdinary trial in applicatin f EU and natinal cmpetitin rules ; Arts. 434 and 465 pssibility f staying prceedings when the curt knws f an administrative file (frm the EU, CNC r the autnmus cmmunities) that requires a declaratin by the authrity). Amendment f the Organic Law f the Judiciary t make the cmmercial curts cmpetent t apply Art. 1 and 2 f the LDC directly. 3. THE FIGURE OF THE AMICUS CURIAE: hw it wrks The figure f amicus curiae cmes frm American law, which has included the figure fr years "in rder t assist the curts in reslving the matters entrusted t them". 5

7 As yu knw, the main purpse f unifrm enfrcement f cmpetitin law is t allw the administrative authrities wh must enfrce cmpetitin law in the public interest t appear in curt. The amicus curiae are a case apart insfar as they are nt authrised t be a party t case, and yet their rle is very similar t that f an expert prpsed by the curt. The main difference is that the amicus curiae cntributes additinal surces f bjective infrmatin and issues an interpretatin f the law as well as an analysis f the facts. Therefre, they d nt serve the litigants' private interests. This des nt mean that the amicus curiae shuld be cmpletely impartial with regards t curt rulings. Rather, they shuld pursue a specific utcme aimed at cherent enfrcement f cmpetitin law. The ptential cllabratin f cmpetitin authrities as experts is imprtant, particularly in cases that invlve highly cmplex ecnmic variables. Their brad experience allws them t give accurate definitins f certain ecnmic cncepts that may be freign t cmmercial curts, such as market demarcatin and the calculatin f damages that require cmpensatin 6. The CNC's authrity t cperate with civil curts is regulated in the new Law n the Defence f Cmpetitin 15/2007 and develped in the Law n Civil Prcedure, thrugh the refrm f prcedural legislatin undertaken by the LDC (secnd additinal prvisin). The CNC's Articles f Assciatin stipulate that the CNC's relatinship with curts and tribunals in the exercise f its statutry fields f cmpetence is crdinated and managed by the Cuncil Secretariat and develped by the Legal Service. On the ne hand, the ratinale fr the amicus curiae is based n the infrmatin sent t the CNC by the curts and tribunals (prceedings t give leave t prceed, appeals against the rulings f the curts f first instance and rulings that enfrce cmpetitin law, fr instance). On the ther, mst amicus curiae activity is related t the dcuments and reprts sent by the CNC at the request f the curts and tribunals r at n its wn initiative. 6 See, Javier Guillén Caramés, La intervención de las autridades administrativas de cmpetencia en la aplicación judicial privada del Derech de la Cmpetencia in La aplicación privada del Derech de la cmpetencia, Luis Antni Velasc San Pedr y trs, Ed. Lex Nva, Valladlid, 2011, pp , n pages. 251 and

8 Smetimes the curts nly require infrmatin r dcuments n a specific case. On ther ccasins, hwever, they als request the CNC t prvide an bjective and reasned pinin n a specific aspect f the litigatin r cmpetitin issue under cnsideratin. In any event, the CNC makes an effrt t send the pinin requested in neutral, precise manner, previusly reasned in natinal r EU law, and in the CNC r the TDC's wn rulings. Quick slutins and hypthetical discussins n the cmplex matters under cnsideratin are avided. Apart frm this dcumentary interventin, the pssibility f an ral interventin in the prceedings is als stipulated in current legislatin. On certain ccasins, Legal Service staff has visited a curt t examine a file n a case and evaluate the pssibility f intervening in it as an amicus curiae. They have already participated rally in a prceeding, as described later. The CNC als acts as a crdinatin centre fr the administrative system by sending the rulings it receives frm the curts and tribunals t ther administrative authrities wh enfrce cmpetitin law: The autnmus cmmunities and the Cmmissin. They may als make a request t intervene in legal prceedings as amicus curiae. 4. MAIN ACTIONS CARRIED OUT BY THE CNC Cperatin between the CNC and the curts which is the main purpse f the figure f the amicus curiae is gradually increasing in Spain. Thus, the CNC received 30 prceedings giving leave t prceed and 17 rulings frm September 2007 t July In cntrast, the CNC received 22 prceedings giving leave t prceed and 32 rulings in 2011 alne. Mrever, in 2012 it has already received 9 prceedings giving leave t prceed and 12 rulings. Nnetheless, it is wrth bearing in mind that mst f the rulings are received via the CENDOJ (Centre fr Judicial Dcumentatin) and nt by the cmpetent curts. Therefre, since it is nt custmary fr the CENDOJ t send rulings t the curts f first instance, there may have been an increase in the number f cmpetitin law prceedings that have nt been sent t CNC. In turn, the CNC sends a nn-cnfidential versin f the rulings issued by Spanish curts in relatin t the enfrcement f Articles 101and 102 f the Treaty t the Cmmissin. Subsequently, the versins are published n the website f the Cmmissin's Directrate-General fr Cmpetitin. Hwever, mst f the rulings n private enfrcement and prceedings giving leave t prceed cntinue t fcus n cntrversies between the big 7

9 fuel distributrs in Spain (Repsl, Cepsa and BP). Fr instance, f the 32 f the rulings received in 2011 were 27 invlved cntracts fr the distributin f fuel. This vlume risks giving rise t discrepancies between the CNC and the civil curts with regards t the enfrcement f cmpetitin law. Therefre, the CNC is studying the pssibility f adpting a mre practive attitude. At its wn initiative, it has made a request t intervene in civil curts as an amicus curiae, with special emphasis n prceedings related t cntracts fr the distributin f fuel in which issues studied by the CNC are invlved (such as indirect price fixatin by fuel distributrs). In 2011, the CNC intervened as amicus curiae in writing, cntributing bservatins in fur different prceedings n private enfrcement f cmpetitin law (invlving service statins, franchises, and credit and debit card cmpanies). S far in 2012, the CNC has received nly ne request frm a curt f first instance (in Melilla) fr a reprt r bservatin n a case invlving the terminatin f cntracts between passenger transprt cmpanies and their agents in the ticket selling sectr. Mrever, 2011 was the first time the CNC cntributed an bservatin rally (Ryanair v Aena, n the adptin f precautinary measures prir t bringing actin, which invlved the actin stipulated in Article 102 f the Treaty and Article 2 f the LDC). 5. MAIN ISSUES DETECTED AND OPPORTUNITIES As we have had the pprtunity t study during this seminar, natinal curts apply bth natinal and Cmmunity laws t the private enfrcement f cmpetitin law in matters cvering the substantive enfrcement f laws, claims fr damages, mandates t d r nt t d, and declaratins f nullity. Key aspects f the abve include such prblematic issues as access t the files n an administrative authrity by an uninvlved third party wh claims damages (the well-knwn Pfleiderer case in Germany, fr instance). Hwever, ther issues must als be reslved by the curts in the future, such as: matters invlving the standard f prf and entitlement t defence in increasingly relevant prcedures, such as cartels that leave n rm fr ecnmic analyses and ther substantive matters, particularly if a declaratin f leniency is invlved; 8

10 the calculatin f fines in administrative prcedures, and the calculatin f the damages sustained by the victims f breaches f cmpetitin in curt prceedings The CNC's cllabratin with the curts culd be especially useful in this last categry f eminently ecnmic questins, and in any ther matter required by curts, bviusly. There are ther scenaris were the Cmmissin might decide t intervene as amicus curiae in a prcedure in a natinal curt where Cmmunity cmpetitin law is being enfrced. There are several matters in which such cllabratin wuld be particularly advantageus. Fr example: Investigatins f breaches f cmpetitin rules cnducted by a curt and a cmpetitin authrity at the same time; Adptins f a decisin by a curt in a case in which a cmpetitin authrity has already existed made a statement; A discrepancy between a curt's pinin and the pinins f cmpetitin authrities n a specific aspect f cmpetitin law enfrcement. Apart frm such particularly prblematic matters, there are n issues that have a specific bearing n the declaratins made n cmpetitin law by Spanish administratins and curts. A very high percentage f Spanish curts (83% accrding t the last reprt) ratify rulings by the CNC (and frmerly by the TDC) that are challenged. Mst f the differences in criteria fcus n the amunts paid in fines, but there are few discrepancies n the substantive enfrcement f laws, r even n inspectins. The mst relevant discrepancies have invlved the field f cntracts fr the distributin f fuel which, n the ther hand, is largely based n case-law. Mst f the prceedings in which the cmmercial curts enfrce cmpetitin law fcus n said cntracts. That is why the CNC is studying the feasibility f adpting a mre practive attitude by applying t intervene as amicus curiae in such prceedings, as mentined earlier. On the ther hand, a distributin f cases and cmpetence that wuld prmte the gradual specialisatin f the curts that try such cases wuld be particularly useful in Spain. The curts invlved are the cmmercial curts in first instance; and the curts in a specific sectin and divisin in secnd instance r in an appeal t a higher curt where appeals against the decisins f cmpetitin authrities are heard. 9

11 6. COPNCLUSIONS We have seen that the fight against restrictive practices almst always invlves granting a larger rle t private peratrs, despite the disadvantages f private enfrcement f cmpetitin rules. Cmpensatin fr damages is the incentive. In Spain, the watershed was marked by refrms prmted by Regulatin 1/2003, with regards t enfrcement f Art. 101 and 102 f the Treaty and, abve all, by the LDC Despite the changes intrduced by the LDC 2007, prcedural and physical barriers t an effective private enfrcement f cmpetitin laws in Spain persist. Hwever, the curts' enfrcement f cmpetitin law in Spain is still relatively recent and is bund t increase ver the cming years. Therefre, it wuld be particularly useful t put in place the available mechanisms t ensure effective and specialised legal prtectin fr the parties cncerned. Beynd dubt, the figure f amicus curiae is a ptential and particularly pwerful slutin fr sme f the issues that have been apprached recently. Cllabratin between the curts and the specialised administrative bdies is highly psitive, particularly in cases invlving cmplex ecnmic issues. The CNC is making a significant effrt in this sense by acting as a centre fr the crdinatin f the administratin system, sending rulings t the bdies invlved and attending t the curts' requests. T the extent that budget allcatins permit, we will cntinue ur task. Mrever, in the name f legal certainty, public interest and cherence in the law enfrcement, the CNC intends t adpt a mre practive attitude in the future, by applying t intervene in prceedings n its wn initiative. 10