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Competition lawyers in demand with antitrust cases set to rise
The new EU directive on antitrust damages , as well as legal challenges to measures taken by the Spanish competition regulator , has led to an increase in activity for lawyers
With private antitrust litigation expected to increase due to the implementation of a new EU directive – as well as questions about the legality of measures taken by Spain ’ s competition regulator – lawyers are receiving a significant increase in instructions from clients concerned about the impact on shareholders and employees .
The EU directive on Antitrust Damages Actions – which the EU requires member states to implement by 27 December 2016 – seeks to give all parties easier access to evidence they need in private actions for damages in the area of antitrust . Jaime Pérez- Bustamante , partner and head of the competition / EU department at Linklaters in Madrid , expects the directive to lead to an increase in private antitrust litigation . “ We have discussed antitrust damages for years , but until recently few cases were being brought ,” he says . “ This is changing rapidly and the EU directive will make such cases even more common – we must take care though to avoid the negative aspects of the litigation-driven culture we see in some other jurisdictions .”
Joaquin Hervada , associate at DLA Piper in Madrid says there are a number of legal concerns about how the directive will be used by the Comisión Nacional de los Mercados y la Competencia ( CNMC ), Spain ’ s ‘ super regulator ’ in charge of enforcing competition rules and regulating economic sectors . “ For example , there are doubts as to whether shifting liability towards an employee may exonerate the company or vice versa ,” he explains .
With the CNMC saying it will make more use of powers to disbar companies that infringe competition law , it is important that the regulator applies the rules with care says Pérez-Bustamante . “ Disbarring companies from public procurement may limit competition for public contracts and harm the tax payers ,” he adds . “ Our clients are also concerned about the consequences this remedy might have for their shareholders and employees .”
Antonio Guerra Fernández , partner at Uría Menéndez in Madrid expects the transposition of the directive to lead to an increase in antitrust damages actions relating to cartels . “ In addition to toughening its approach to exchanges of information , the CNMC is now applying a new methodology to calculate fines in cartel cases , after the Supreme Court ’ s judgement in January 2015 annulled its former methodology ,” he explains . “ If the Supreme Court does not validate the current methodology , which is also being challenged [ the judgement of which is expected in early 2017 ], all the fines imposed by the CNMC in the last two years will have to be recalculated .” Antonio Martinez , partner at Allen & Overy , says that many companies are already contesting the controversial methodology in court . “ The way the CNMC interpreted the Spanish Supreme Court ’ s 2015 judgement is casting serious doubts about its compatibility with the principles of proportionality and legal certainty ,” he explains .
Awareness increasing That said , regulatory scrutiny has improved antitrust standards , argues Casto González-Páramo , partner at Hogan Lovells . “ The increasingly restrictive approach of the Spanish antitrust authorities towards exchanges of information has raised the level of company awareness regarding activities involving cooperation with competitors .” Meanwhile , Oriol Armengol , partner at Pérez- Llorca , says despite uncertainty about CNMC calculations , merger control activity is increasing as the recovering economy has “ caught the attention of clients who are yet again focusing on Spain and piquing investors ’ interest in the Spanish market ”.
Martínez argues that an increase in merger control activity is not due to the CNMC . “ Merger control investigations are very much dependent on M & A activity ,” he says . “ This in turn depends on the macroeconomic situation .”
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• IBERIAN LAWYER • September / October 2016 www . iberianlawyer . com