The Provincial Court of Vizcaya confirms a sentence to the members of the truck cartel of 15% of the price

In its judgment of June 4, 2020, Section 4 of the A.P. de Vizcaya has confirmed the ruling of the Commercial Court 1 of Bilbao in the sense of condemning the manufacturers IVECO and CNH to pay compensation for its illegal activity, fixing the compensation at 15 percent of the price paid by the claimant entity plus interest from the date of purchase.< /p>

These two defendant companies had been sanctioned by the European Commission (Decision of 07/19/2016 in the case AT. 39824) for having participated in practices contrary to Competition Law . Said sanction was final as it had not been appealed by any of the sanctioned European manufacturers.

The aforementioned ruling declares the jurisdiction of the Spanish courts, rejecting the appellants’ thesis. Follow the jurisprudence of our Supreme Court (cars of 11/26/19, 12/3/19, 12/10/19, 12/17/19) to estimate the competence of the Judge of the defendant’s domicile and if he did not have an address in Spain that of the place of production of the damage. According to the ATS of 12/19/19, that place of production of the damage is the one where the vehicle was acquired.

The Provincial Court estimates the active legitimacy of the claimant company both with respect to the vehicles purchased and those financed by leasing, once this fact has been accredited with the contract, the file technique and registration in the traffic registry. And it estimates the passive legitimation of the sued companies due to the fact that they are recipients of the Decision.

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The appellants had alleged the non-retroactivity of the reform of our Law for the Defense of Competition (approved by RDL 9/2017) which was introduced into our Law the presumption of the existence of damages in cases of infringing conduct (art. 76.3). The ruling admits that the Damages Directive 2014/104 cannot be applied because the illegal acts were committed before its approval and logically before its transposition into the Spanish legal system. But this does not prevent the compensatory sentence.

The Court considers that articles 101 and 102 of the Treaty establishing the European Union have direct effect. It adds that Directive 2014/104 is based on the jurisprudential criteria of the Court of Justice of the European Union in terms of recognizing the right to compensation for damages caused by infringement of Union Competition Law. And it refers to the jurisprudence of our Supreme Court that has applied the presumption of the existence of damage when a situation occurs in which its existence is necessarily and fatally deduced from the illegal act, or they are a forced, natural and unavoidable consequence or they are incontrovertible, evident or patents (“ex re ipsa” doctrine).

The commented resolution sets the limitation period of the indemnity action at one year, applying the standard of legal actions for tort liability. As the reform of the Law for the Defense of Competition was subsequent to the facts, the 5-year period established in the Damages Directive does not apply. Term to be computed from the publication of the Decision in the Official Gazette of the EU.

Regarding the proof of damages, in contrast to the criteria held by other Courts, the Court of Vizcaya in this is its first judgment on this matter, confirmed on 15 percent tax in the first instance. It validates the percentage criterion applied by the Mercantile Court and that it is close to the valuation requested in the lawsuit and demonstrated by means of an expert report that applied a statistical criterion after analyzing the average of the cartelized prices in the European sphere for more than a century. Regarding the proof of damage, the Court affirms, in general, the right of the injured party to obtain compensation for anti-competitive practices, although it cannot exhaustively prove the extent and specific scope of the damage by applying the jurisprudence of the Supreme Court (s. of 7/11/ 2013 of the sugar cartel).

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