Many articles explain that the 2014 Directive on Antitrust Damages1 has enhanced the private enforcement of competition law through civil claims in all Member States. This article is a global overview of the relevance and presence of private enforcement of competition law in Spain. It takes into account the most recent developments in the field and refers to legal and procedural issues currently open to debate in Spanish private enforcement proceedings (many relating to the well-known "trucks cartel case"). We then focus on the importance of the economic side of these types of claims to determine and quantify damages, and concludes by referring to the most recent efforts of the Spanish competition authority to develop a reputable private enforcement practice in Spain.

1. Relevance and presence of private enforcement of competition law in Spain

Private enforcement of competition law is gaining more and more importance in Europe and Spain. The numbers speak for themselves.

From a European perspective, over the past 20 years, the European Commission (EC) has issued more than 350 final decisions in antitrust and cartel cases.2 There are many examples of breaches of article 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), although the most common breaches arise from collusion agreements, abuse of dominant position and vertical restrictions.3

The EC decisions generally refer to the possibility for potentially affected parties to bring an action for damages and encourage customers and companies to seek compensation through private enforcement litigation. Many of these cases have resulted in private litigation across the European Union.4

From a Spanish perspective, in the last 12 years (from 2010 to 2022), the Spanish competition authority (CNMC5) has issued 190 sanctioning resolutions arising from breaches of article 1, 2 and 3 of Act 15/2007 of July 3 on the Defense of Competition (LDC).6 Since then, the CNMC's activity has been constant, and there are currently numerous proceedings under investigation and pending resolution, affecting many industries, including chemical products, medicines, funeral services, tobacco, passenger transport, construction and rehabilitation and consultancy sectors.

As with the EC's cases, some of these resolutions have resulted in private litigation for claims for damages between the infringers and those affected by the sanctioned conduct (and it is expected that they will increasingly do so).

Until 2017, the most relevant case was the sugar cartel case, resulting in the Spanish leading Supreme Court Judgment 651/2013 of November 7, 2013, laying the foundations for claims for damages in Spain. Before that, there were several cases of abuse of a dominant position, such as the Telefónica case (3C Telecommunications v. Telefónica and Conduit v. Telefónica) and the Spanish Football League case, where the allocation of the clubs' matches broadcasting rights were decided (the Spanish Soccer League (LNFP) v. Antena 3). Also, there are examples of claims for damages arising from horizontal agreements, such as the building insurance cartel (i.e., the REALIA v. ASEFA and SCOR ruling) and the paper envelopes cartel (i.e., PSOE v. TOMPLA).

But it was not until 2017 that the trucks case took the lead.7 This case stands out not only for being the EC decision imposing the highest fine to date on an infringement of article 101 TFEU, but also for giving rise to the highest number of claims in history and the most extensive and large-scale competition damages litigation ever seen in Europe (as the infringement concerned the entire EEA). In Spain, the trucks case has revolutionized private enforcement litigation, with thousands of ongoing trucks proceedings,8 and more than 1,800 judgments from 80 different commercial courts and 1,500 judgments from 42 provincial courts.

In fact, the claims for damages in the Spanish trucks litigation are being processed much faster than in other European countries. However, there is still much work to be done, as we will see in the following sections.

2. Open issues in Spanish private enforcement proceedings

The recent exposure of private litigation has revealed many unresolved private enforcement-related issues in Spain. The recent transposition of the Damages Directive into the Spanish law (resulting in two different coexisting systems: pre- and post- transposition), as well as the relative lack of experience in this area (see above), has led to many questions being currently referred to the CJEU for preliminary rulings or which have yet to be resolved by the Spanish Supreme Court. Most of the legal issues affecting private enforcement in Spain still lack case law from the Spanish Supreme Court (the Supreme Court is expected to issue its first ruling on the trucks case during 2023).

Below are some of the most relevant issues still open to debate:

  • Jurisdiction and service: It is common for an infringement to affect several markets (EU and non-EU). When this happens and the parties are from different countries, specific Private International Law rules apply and not all judicial bodies may have jurisdiction to hear the claim. Also, under European regulations (applicable in EU litigation), there are specific service requirements that must be complied with. In Spain, claims have been dismissed (or at least delayed) because they were not properly addressed or served (implying a significant waste of time and resources). Therefore, a thorough analysis of this issue (which requires specialized knowledge in this area) is important in a claim for damages.
  • Joinder of claims: In Spain, the trucks proceedings are very scattered (there are thousands of proceedings currently being conducted), which causes serious difficulties for the courts' workload management. To gain efficiency, some Spanish judicial bodies are working on joining proceedings (following the example of other jurisdictions, such as the UK). Specifically, the Commercial Courts of Barcelona have developed a protocol with the main objective of substantiating the majority of the truck cartel claims jointly, creating a "macrocase" (with the consent of the parties concerned).9 This effort will undoubtedly serve as a precedent for future mass claims arising from competition law infringements.
  • Legal standing: In principle, follow-on claims must be filed against the entities identified in the sanctioning decision issued by the competition authority. However, in certain circumstances, private enforcement litigation may affect other entities (e.g., the parent company or the subsidiary of the sanctioned company).10 On the claimant's side, the legal standing may be difficult to prove in cases where the lack of supporting documentation makes it difficult to prove the acquisition of the affected product (given the time that has passed since the purchase).
  • Limitation: In Spain, there is currently some debate on both the statute of limitations for damages actions (1 versus 5 years)11 and on determining when this period begins to run (dies a quo).
  • Presumptions: Most Spanish judges presume the damage caused by a conduct such as that in the trucks case; however, this is a questionable issue that has yet to be resolved by the Spanish Supreme Court.12 In any case, a distinction should be made between (i) the existence of damage and (ii) the later quantification of that damage, in a way that a presumption of damage, if possible, would not mean that the claimant is exempt from having to quantify the damage.

3. Determining and quantifying the damage

Competition private enforcement claims have an important economic aspect. This type of litigation requires a solid and robust expert report that determines and quantifies the damage according to the specific case and in line with the EC's guidance on the matter. In many cases, the expert report may determine the success (or failure) of a claim for damages.

The Spanish Supreme Court judgment in the sugar cartel case (a leading precedent for the current private enforcement proceedings)13 requires the formulation of a "reasonable and technically founded hypothesis" based on "verifiable and non-erroneous data." To this end, the determination and quantification of the possible damages must be carried out using one or more scientific methods based on disciplines such as mathematics, statistics, and economics.

We highlight the European Commission Practical Guide "Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union" (the "EC Practical Guide"). Although it is not a binding regulation for European judicial bodies, it has proved to be a very useful tool when assessing parties' expert report; e.g., in Spain, the majority of judgments in the trucks litigation refer to the EC Practical Guide.

The EC Practical Guide sets out the recommended methodologies to determine damage and its quantification, depending on the type of infringement and the availability of data. It distinguishes between three types of methodologies: (i) comparator-based methods (comparing the price paid by the claimant with a competitive benchmark price, which are prices observed in the same market before or after the infringement, prices of the product affected by the infringement in a different but similar geographic market, and prices of different but similar products in the affected geographic market); (ii) simulation models; and (iii) cost-based and financial methods.

The party's lawyers and the economists must be aware of the advantages and disadvantages of each technique and choose the most appropriate one given the circumstances of the case under analysis. However, the growing trend towards mass litigation and the emergence of experts who are not specialized in competition matters have led to reports being submitted that do not always meet the minimum requirements in terms of analyzing and presenting the evidence.

An expert report must comply with the following:

  • Expert's expertise: Private enforcement of competition law is a specific subject that requires specific expertise. Undoubtedly, one of the key aspects of these reports is that they are made by experts with previous experience and specific knowledge in the field (particularly knowledge about competition economics and the requirements of this type of report), as well as specific knowledge about the relevant market.
  • Representativeness of the data: Further to the method applied, what is key to an analysis is the data on which it is based. The expert report needs to be based on a good and representative database (although this will depend on the availability of the information), so the results of the analysis can be extrapolated to the reality of the market.
  • Usually, the data is in the hands of one of the parties or of third parties; e.g., a company that has participated in a price-fixing cartel may have access to the transactions made during the cartel period and the period after that. The same applies to cases where the defendant wants to allege and prove the pass-on of the damage from the claimant to third parties; in those cases, the relevant data will be in the hands of the claimant.
  • For this reason, and to avoid an imbalance between the parties regarding the availability of information, the Spanish system provides a mechanism for accessing sources of evidence that are specific to this type of proceedings (article 283 bis of the Spanish Law on Civil Procedure, which is the result of the transposition of articles 5 and 6 of Directive 2014/104/EU). Both the claimant and the defendant can use this mechanism to request the disclosure of the necessary evidence. However, these information requirements cannot be indiscriminate; they must be limited and proportionate.
  • The request for the disclosure of evidence is made by the parties (not by the expert) and, more specifically, by their lawyer. Therefore, good coordination and collaboration between the lawyer and the party's expert will be essential to obtain the data. Also, these requests require specialized legal knowledge on how to appropriately request the data.
  • Transparency: The reports must also must explain with full transparency the reason for choosing one method over another (stating the pros and cons of its use) and all the steps followed in the analysis (including the commands–mathematical formulae–of the regression analysis, if applicable). They must also provide the database used in the analysis. This is so the opposing expert can replicate the analysis carried out by the other party and check the veracity and reliability of the results. Otherwise, one would have to blindly rely on the results presented.14
  • Usually, the data is confidential (as it refers to highly sensitive commercial information such as prices, cost structure and profit margins).15 It is considered that this type of confidential data must be protected.16
  • To ensure the confidentiality of the data, the use of data rooms is becoming more and more accepted.17 A data room is a room in which the experts make available on their computers the data and commands used in the economic models for preparing their report, so the opposing expert can analyze and process them. This way, the opposing party's expert can check the accuracy of the data and formulae, without compromising the confidentiality of the information.
  • The EC Communication on access to confidential information refers to the concept of "Confidentiality Ring"18 as a measure "to ensure the disclosure of quantitative data (e.g., revenues, prices, and margins) or highly strategic commercial information" allowing "a balance to be struck between the need for disclosure and the obligation to protect confidential information." Similarly, the Spanish Law on Civil Procedure provides the possibility of "limiting the persons allowed to examine the evidence."19 As indicated by the EC,20 a data room procedure is one of the ways of implementing a Confidentiality Ring). The data room is also an ideal solution when a large volume of documentation is being disclosed.
  • The advisability of adopting Confidentiality Rings as a measure to protect voluminous or difficult-to-disaggregate information, as well as the possibility of implementing data rooms for this purpose, has been expressly recognized in the "Protocol for the Protection of Business Secrecy in Commercial Courts," adopted by the Competition Law Section of the Commercial Court of Barcelona.
  • Case-by-case analysis: Each competition infringement and claim for damages requires a specific analysis (since there is no generic type of damage that can be applied to any competition infringement case). To this end, the nature and context of the conduct, the particularities of the affected market, the dynamics of supply and demand in the market, and all aspects unrelated to the conduct that may have influenced its operation must be considered.
  • There are many cases where the experts have based their claims on meta-studies such as Oxera21 or Smuda,22 which are in turn based on Connor's database23 (which contains information on hard core cartels worldwide from 1890 to 2009). Despite it being a reference for general cartel effects, these studies cannot be used to establish and quantify the potential damage derived from the specific infringement. The studies themselves acknowledge that a case-by-case analysis must be carried out.24 For this reason, most Spanish courts are currently rejecting this type of "generic" report as a basis to quantify damages.
  • Choice of a correct counterfactual reference: As stated above, determining damage requires choosing the most appropriate method, given the specific circumstances of the case. In a claim for damages for an infringement of article 101 TFEU, the starting point is to compare the claimant's actual situation with the situation it would have probably been in had the infringement not occurred (counterfactual scenario). To this end, the compared scenarios (actual and counterfactual) must be sufficiently similar; i.e., virtually the same except for the infringement. Sometimes, the expert selects an inappropriate counterfactual scenario (e.g., a product or geographic market that is not sufficiently similar to the affected market), and this erroneous selection invalidates the results of the analysis. In other cases, and even though the counterfactual scenario is identified correctly, the methodology used does not make appropriate adjustments to control the particularities and development of the market concerned. This would also lead to invalid results.
  • Consistency and robustness of the results: It is important that the results obtained under the different assumptions and analyses presented in the report are consistent with each other. In addition, in econometric analyses, it is established practice to analyze changes in estimation results in response to changes in one or more assumptions of the underlying model (e.g., by changing the way a particular variable is measured). The purpose is to confirm the reliability and robustness of the conclusions derived from the base model of the analysis.

The above shows that determining and quantifying the damage derived from a competition infringement is not as straightforward as it may seem. However, it can be done if the party appoints the right expert and uses the appropriate technique and the necessary data.

4. Future steps: the CNMC Practical Guide

Undoubtedly, the economic assessment of these claims requires specific knowledge about (i) the methods and techniques that should be used to determine and quantify damage; (ii) the factors to consider when choosing one method or another; and (iii) the robustness and reliability standards that must be met.

Following the example of the European Commission in the EC Practical Guide (see section 3), the Spanish National Commission of Markets and Competition (the "CNMC") recently launched a Draft Guide on Damages Quantification in Competition Infringements (the "CNMC Draft Guide").25 The aim of the CNMC Draft Guide is to "assist judges and courts, disseminate best practices and increase the technical rigor of the expert reports associated with these proceedings for the quantification of damages for competition law infringements."26

The CNMC has been the first European authority to carry out such an initiative, which is of great value in a country like Spain, given the enormous growth of this type of litigation in recent years, the technical complexity involved in quantifying damages and the differing judicial assessments of expert evidence. In Oxera's words, it is "a particularly helpful step in developing the damages quantification frameworks applied in Spain."27

The CNMC has submitted the CNMC Draft Guide twice for public consultation (October 2021 and November 2022), so the draft is yet not final. Entities that made allegations or provided responses during the public consultation are Compass Lexecon, Nera Economic Consulting, the Brattle Group, Oxera Consulting LLP, the European Association for the Defense of Competition, the General Council of Economists of Spain, the European Circle for Competition Damages and several judges from Spanish Provincial Courts specialized in the matter. In general, the CNMC Draft has been well received and public consultations have been useful. The guide adds or elaborates topics that deserve special attention, which are discussed below.

  • Checklists: The CNMC Draft Guide includes checklists for the technical and economic factors that should be considered when assessing expert evidence.28 This practical approach can be very useful for judges, to be able to systematically check whether the expert report meets the essential requirements to validly determine and quantify damage. However, these checklists must be elaborated and used with caution, since the evaluation criteria may change depending on the circumstances of the case. A checklist that is too prescriptive and does not allow for an assessment of the possible particularities of the case may lead courts to reject valid methodologies that have been correctly applied.29
  • Databases: As stated above, one of the most important aspects of an expert report is the database used in the analysis. The CNMC Draft lists some of the general requisites of a database to be considered valid for a quantification of damage (acknowledging, e.g., the possibility of using both public and private data sources; the CNMC rightly points out that, in most cases, it is the defendants or third parties that have the data necessary to perform an accurate and robust analysis).
  • The CNMC Draft Guide also makes useful suggestions on the disclosure of information; e.g., the need for both parties to have access to the data used by the other party in a processable format, to replicate or refute the conclusions reached.
  • Transparency: The CNMC Draft Guide rightly stresses the need for transparency relating to the economic models used to quantify damage. For instance, it refers to the convenience of providing access to the data and commands of the economic models for their verification and replication, as well as references to competition authorities' practices and the use, among other measures, of data rooms for this purpose. This is consistent with the requirements set out in the previous section.
  • Case-by-case analysis: The CNMC Draft Guide emphasizes that "the quantification of damages requires a proper and specific study" and "quantifications based exclusively on damage estimates from previous judgments in similar cases, or on the automatic application of an average percentage of past cartels or economic literature, are not necessarily a good approximation of the damage caused in a given case."30 This statement is also appropriate, especially to avoid the type of generic reports mentioned in the previous section.

5. Conclusion

The increasing importance of private enforcement of competition law is undisputed. Although many issues are open to debate, the main focus is probably on the economic side of claims (which, in the end, aims to determine and quantify damage). There are many requisites that experts must respect in this regard. The database used in the analysis, the degree of transparency of the report, and the reasonableness of the approach followed by the expert may determine the success or failure of a claim for damages. For this reason, the Spanish authority (CNMC) has taken the lead and is launching a practical guide to quantify damages in this field, to help judges to properly assess the expert reports and distinguish between a report that is well-founded and reliable and one that is not. We will analyze all the particularities of this new guide in a new article, once the official version has been published.

Footnotes

1. Directive 2014/104/EU of the European Parliament and of the Council of November 26, 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 Text with EEA relevance. Available at https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32014L0104.

2. Information available at https://ec.europa.eu/competition/elojade/isef/index.cfm.

3. Examples of cases of breaches of article 101 TFEU include the Vitamins decision issued in 2001 for fixing prices and agreeing on sales quotas; the Elevators and escalators decision issued in 2007 for bid rigging for procurement contracts, fixing prices and allocating projects; the Air freight decision issued in 2010 (re-adopted in 2017) for bilateral and multilateral contacts between airlines to discuss surcharges on fuel and security; the Trucks decision issued in 2016 for coordinating gross prices and delaying and passing on the costs of the emissions technologies; the Car emissions decision issued in 2021 for restricting competition on SCR-systems, which eliminate harmful nitrogen oxide (NOx)-emissions from diesel passenger cars; the decisions on Euro interest rates derivatives (issued in 2013 but amended and re-adopted in 2021) and on Foreign exchange spot trading (issued at the end of 2021), both dealing with an exchange of sensitive information through bank traders.

Regarding breaches of article 102 TFEU, the following received the highest fines: Microsoft was fined in 2004 for restricting interoperability in the market for work group server operating systems, and tying its Windows Media Player to its Windows operating system, and in 2013 for tying its operating system to its web browser (Internet Explorer); Telefónica was fined in 2007 for margin squeeze in the Spanish broadband market; Intel was fined in 2009 for illegal practices to exclude competitors through rebates and direct payments to reduce the stock of computers with competitors' CPUs; Qualcomm was fined in 2018 for payments to Apple on the condition that it only obtains its baseband chipsets and, in 2019, for supplying certain quantities of chipsets below cost; and the three Google cases, Google Search in 2016, Google Shopping in 2017 and Google Android in 2018.

4. Private litigation has lead to different judgments by the CJEU: Manfredi case, judgment of July 13, 2006 (C-295/04 to C-298/04); Pfleiderer case, judgment of June 14, 2011 (C-360/09); Courage case, judgment of September 20, 2001 (C-453/99); Otis case, judgment of November 6, 2012 (C-199/11); Donau Chemie case, judgment of June 6, 2013 (C-536/11); Kone case, judgment of June 5, 2014 (C-557/12); CDC Hydrogen Peroxide case, judgment of May 21, 2015 (C-352/13); Gasorba case, judgment of November 23, 2017 (C-547/16); FlyLAL case, judgment of July 5, 2018 (C-27/17); Skanska case, judgment of March 14, 2019 (C-724/2017); Cogeco case, judgment of March 28, 2019 (C-637/17); Tibor-Trans case, judgment of July 29, 2019 (C-451/18); Otis II case, judgment of December 12, 2019 (C-435/18); Volvo case, judgment of July 15, 2021 (C-30/20); Sumal case, judgment of October 6, 2021 (C-882/19); SCC Equilib case, judgment of November 11, 2021 (C-819/19); Volvo AB and DAF Trucks v RM, judgment of June 22, 2022 (C-267/20); Landkreis Northeim v Daimler AG, judgment of August 1, 2022 (C-588/20); Paccar Inc case, judgment of November 22, 2022 (C-163/21); and RegioJet a.s. case, judgment of January 12, 2023 (C-57/21).

5. Comisión Nacional de los Mercados y la Competencia (formerly, Comisión Nacional de la Competencia or CNC).

6. According to the CNMC's Reports from 2010 to 2021, available at https://www.cnmc.es/sobre-la-cnmc/memorias. The number of resolutions issued in 2021 can be obtained through the following link on the CNMC website, as there is no report yet for 2021: https://www.cnmc.es/acuerdos-y-decisiones.

The most popular breaches of article 1 LDC include the 10-year building insurance resolution issued in 2009 for fixing minimum prices; the paper envelopes resolution issued in 2013 for fixing prices and market sharing; the car brand manufacturers and distributors resolution issued in 2015 for exchanging sensitive and strategic information in the areas of business management, after sales and marketing; the Prosegur-Loomis resolution issued in 2016: these two companies provided cash transport and manipulation services and agreed on market sharing so they could maintain their dominant position on the market; the dairy industries resolution issued in 2019 (amended after the Audiencia Nacional partially upheld the appeal submitted by Nestlé) - the practices sanctioned relate to the exchange of information on purchase prices of raw cow's milk, purchase volumes and milk surpluses; the railway electrification and electromechanics resolution issued in 2019 for bid rigging in public tenders on conventional and high-speed rail lines offered by ADIF (the Spanish state-owned railway infrastructure manager); the solid fuels resolution in 2020; and the civil works resolution in 2022 concerning infrastructure construction tenders.

Other resolutions that fine breaches of article 2 LDC include the Short message service case in 2013 in which Telefónica, Vodafone and Orange (the three telecom operators with the highest market share in Spain at that time) were deemed to have abused their dominant position by applying excessive prices in the wholesale services termination and origination of SMS and MMS short messages; the case brought against SGAE (the Spanish General Society of Authors and Publishers) in 2014 for applying unfair and excessive tariffs to the licenses granted for the public communications of concerts held in Spain; and the recent resolution against Correos (the Spanish state-owned postal and telegraphic services company) in 2022, in which potential exclusionary effects in the discounts policy for traditional postal services provided to bulk mail customers were found.

Finally, the highest fines for breaches of article 3 LDC (unfair acts of distortion of competition) are related to the energy sector, in the cases against Gas Natural in 2011, Iberdrola in 2012, and Endesa in 2012 and 2019.

7. Apart from the trucks case, the dairy industries cartel, the cable cartel, the lithium battery cartel, the diapers cartel, the 10-year building insurance cartel, and the car brand manufacturers and distributors cartel are currently generating private claims. The car proceedings are expected to increase exponentially in the coming months.

8. https://cincodias.elpais.com/cincodias/2021/05/14/legal/1620987533_656474.html.

9. https://confilegal.com/20210919-expertos-en-competencia-de-toda-europa-elogian-el-protocolo-de-barcelona-que-convierte-cientos-de-asuntos-en-macrocausas/.

10. In its judgment of October 6, 2021 (Case C-882/19), the CJEU declared that, under certain circumstances, the "single economic entity doctrine" applies for extending a parent company's liability for infringement of EU competition rules to its subsidiary. In particular, the CJEU has recognized the possibility for the victim of an anticompetitive practice to bring an action for damages either against a parent company that has been punished by the Commission for that practice in a decision, or against a subsidiary of that company not referred to in that decision when (i) subject to meeting certain requirements established in the judgment, it can be considered that those companies together constituted a single economic unit; and (ii) the subsidiary company concerned has been able to rely on its rights of defense to show that it does not belong to that undertaking and, where no decision has been adopted by the Commission under article 101 TFEU, it is also entitled to dispute the existence of the conduct alleged to amount to an infringement.

11. After the CJEU Judgment of June 22, 2022 (Matter C-267/20), on the application of Directive 2014/104 and the retroactivity of the rules in Decree-Law 9/2017 transposing the Directive (including the article extending the limitation period to five years), some Spanish courts understand that the statute of limitation in the truck case is one year, whereas other courts apply the five-year period.

12. According to the CJEU judgment of June 22, 2022 (Matter C-267/20), the legal presumption of damage provided under article 17(2) of the Directive would not apply to the trucks case.

13. Spanish Supreme Court Judgment 651/2013 of November 7, 2013.

14. See the European Commission's "Best Practices for the submission of economic evidence and data collection in cases concerning the application of articles 101 and 102 TFEU and in merger cases" (Annex I) available at
http://ec.europa.eu/competition/antitrust/legislation/best_practices_submission_en.pdf and the CNMC's Guide for the submission of economic reports to the CNMC's Competition Directorate (p. 5), available at
https://www.cnmc.es/sites/default/files/editor_contenidos/Competencia/Normativas_guias/Guia%20presentaci%C3%B3n%20informes%20economicos%20en%20la%20DC%20CNMC.pdf.

15. The European Commission qualifies this data as particularly sensitive data in its Communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law (Communication on access to confidential information). See reference in paragraph 32(i) to "prices, cost structure, profit margins."

16. The need to ensure the confidentiality of the data has been set out by the European Commission also in the "Communication from the Commission — Guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser" (Pass-on Guidelines, para 30) and in its "Best Practices on the disclosure of information in data rooms in proceedings under articles 101 and 102 TFEU and under the EU Merger Regulation" (Data-room Best Practices).

17. The use of a data room is expressly contemplated by the European Commission in the Communication on access to confidential information (para. 5). Its purpose is to guide national courts on the correct interpretation of the measures provided under article 5 of Directive 2014/104 (and its equivalent in the Spanish Civil Procedural Law: Article 283 bis a "b") and to help them to select effective protection measures according to the circumstances of the case. The data room procedure is also expressly established in the Pass-on Guidelines and the Data-room Best Practices. However, some Spanish courts (e.g., the Provincial Court of Valencia) have shown their scepticism towards the use of data rooms.

18. Section III, section C, para 55.

19. Article 283a "b," paragraph 5 of the Spanish Civil Procedural Law.

20. Para. 50 and footnote 49 of the Communication on access to confidential information.

21. Oxera (2009). Quantifying antitrust damages.

22. Smuda, F. (2012). Cartel Overcharges and the Deterrent Effect of EU Competition Law, ZEW discussion paper.

23. Connor, J. M. (2010). Price-fixing overcharges.

24. "However, the amount of the overcharge in any particular damages case would ultimately need to be determined pursuant to the requirements of applicable national law. It is possible that a cartel, even if it were found to infringe article 101, was ineffective and hence that the overcharge was negligible or zero." Oxera (2009), page ix.

25. Last version available at https://www.cnmc.es/sites/default/files/220915%20Borrador%20Gu%C3%ADa%20cuantificaci%C3%B3n%20da%C3%B1os%20por%20infracciones%20del%20derecho%20de%20la%20competencia.pdf.

The first version is available at https://www.cnmc.es/file/306138/download.

26. CNMC Draft Guide, p. 6.

27. Oxera Consulting LLP's response to the public consultation launched by the CNMC regarding the CNMC Draft Guide, p. 2.

Available at https://www.cnmc.es/sites/default/files/Oxera%20Consulting%20LLP.pdf.

28. CNMC Draft Guide, Section 2.5.

29. The CNMC Draft Guide (p. 59) states that the checklists are "a number of non-exhaustive and non-exclusive methodological caveats that could be used to test the reliability of damage quantifications results."

30. CNMC Draft Guide, pp. 73 and 75.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.