ANTITRUST DAMAGES CLAIMS UNDER EU AND NATIONAL LAW A TRANSPORTATION SECTOR FOCUS Pedro Callol

Table of contents Precedents of cartels in the transportation sector. Cartel in the trucks sector. The EU antitrust damages Directive. National implementation of the Damages Directive. Some legal issues relevant to antitrust damages claims. Conclusions.

Cartel in the trucks sector Decision of the European Commission, of 19 July 2016, in case AT.39824, Trucks (OJ 2017/C 108/05). Against MAN (leniency programme), Volvo/Renault, Daimler, Iveco and DAF. The highest fine imposed on a cartel (€2.926 million). During 14 years (1997 through 2011).

Other cartels in the transport sector European Union Decision of the European Commission, of 15 July 2015, in case AT.40098, Blocktrains (OJ 2015/C 351/06). Express Interfracht (Austrian railway) and Schenker (German railway). During 8 years (from July 2004 to June 2012). Spain Refrigerated transport (NMCC Decision of 25 June 2015). International moving companies (NMCC Decision of 6 September 2016). Security companies: Prosegur and Loomis (NMCC Decision of 10 November 2016). Balearic transport of passengers (NMCC Decision of 9 March 2017).

EU Directive 104/2014 Directive on antitrust damages actions. Main improvements: National courts can order companies to disclose evidence. A final decision of a national Competition Authority finding an infringement will automatically constitute proof of that infringement before courts. Harmonized limitation period. Joint and several liability is the rule. Discovery.

Implementation of the Directive in Spain February 2015: Proposal 26 May 2017: Royal Decree-Law 9/2017 Instrument of urgency. The deadline to implement the Directive expired in December 2016. It amends: The Spanish Competition Act (regarding substantive issues). The Spanish Civil Procedure Act (concerning procedural issues such as access to evidence).

Implementation of the Directive in Spain (II) Main improvements: General rule of statutory joint and several liability of cartel members (exception to the general rule). Presumption of liability of parent companies for damages caused by their subsidiaries (plus to the Directive). Statute of limitations: five years (exception to the one-year period for non-contractual damages, which continues to be in force). Final decisions of national competition authorities and courts establishing the existence of an infringement will be considered binding on Spanish civil courts (novelty in Spain departing from the football rights case). New rules regulating access to means of evidence.

Structure of a damages claim: some practical issues Territorial and subject matter of jurisdiction. Joinder of claims. Anchoring defendant. Time bar. The dies a quo. The Sugar cartel case. Existence of damage. Joint and several liability. Interest. Ordinary interest. Default interest. Procedural interest.

Possibility of claiming damages against the Spanish State due to the delay in implementing the Directive Direct effect of Directives The Van Gend en Loos case (1963). The Marshall case (1986). The Foster case (1990). The Pretore di Salò case (1987) Principle of State liability The Factortame case (1990). The Tögel case (1998). The Francovich case (1991).

Possibility of claiming damages against the Spanish State due to the delay in implementing the Directive (II) 3 requirements: The legal rule breached aims to confer rights on individuals. The violation is sufficiently characterized. There is a direct causal relationship between the breach of the State’s obligation and the damage suffered by the victims.

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