Companies can avoid the contract or to request a claim for damages for infringement of the rules on competition.
The legal strategy for cases on competition It has evolved greatly since the Spanish Constitution in Article pick 38 the principle of free enterprise in the framework of the market economy. It is considered that competition is a desirable value, although there are some limitations to competition in all developed countries for various reasons, as the protection of strategic interests and ensuring the provision of certain services.
In terms of competition law converge both administrative law and commercial law. So much so, that the proposed Commercial Code 2013 It is included in its Book Three competition law.
Overall, infringes competition law any agreement whereby companies decide not to compete with each other. The consequences will be more serious when a company has a dominant market position. If this is the case, the company shall be liable therefore cartels (noncompete agreements) as abusive practices.
Traditionally, those damaged by a cartel must report this conduct to the European Commission or the National Commission of Markets and Competition (CNMC) or equivalent body in the Autonomous Regions, wait for his decision and subsequently bring a civil claim to request compensation for damages. The result was that the ever lengthening procedures. The time and cost of such processes were to question its effectiveness.
However, the situation has changed since the Directive 2014/104 / EU 26 November Parliament and the Council, on certain rules governing actions for damages are governed under national law, for infringements of competition law of the Member States and the European Union.
Although no transposition has been our domestic law His deadline is 27 December 2016- this Directive constitutes a revolution in the field:
• The right to be compensated in full way, regardless of the physical condition of the injured person or legal entity.
• binding force is given to the decisions issued by the national competition authorities.
• The offending companies will be responsible jointly and severally: The injured party may request directed against any of them.
• Access to testing is provided: Judges may order the production of evidence and sanctions in case of refusal by the offender.
• The statute of limitations for claiming damages must be at least five years.
• If the existence of a cartel, se presume (only law) the existence of damage.
• court settlement of these conflicts It is expected to encourage agreements between the parties.
Returning to the Spanish case, in addition to invalidity claims or compensation for damages, it is possible to invoke the rules of competition in cases where the company requires compliance with a collusive agreement: You can argue the invalidity pursuant to Article 101.2 TEU and Article 1.2 the Ley15 / 2007, of 3 July, Defense of Competition:
"They are automatically void agreements, decisions and recommendations, It is prohibited under the provisions of paragraph 1, They are not covered by the exemptions provided for in this Act ".
Article 6 del Reglamento 1/3003 of 16 December 2002 on the application of the rules on competition under Articles 81 and 82 the Treaty on European Union provides that the articles 101 and 102 they are directly enforceable by the national courts.
The main behaviors that are listed in Law on Protection of Competition it's collusive behavior, abuse of dominant position and the distortion of competition through unfair acts.
Is considered collusion any recommendation or agreement or practice (conducted with an element of Consciousness) whose purpose, produce or have the potential to prevent, restrict or distort competition in all or part of the Spanish territory. In particular, They considered as such:
• Pricing or other commercial or service conditions.
• Limiting or controlling investments, production, distribution or technical development.
• The sharing of sources of supply or market.
• The application of different conditions harming certain competitors.
• The conditioning contracts for the acceptance of benefits unrelated to the subject of the first.
Abuse of dominant position
The abuse of prohibited dominant position of one or more undertakings, in all or part of the national territory.
This abusive behavior can be reflected mainly in the conditions seen in the previous section. Not enough to have a dominant position, it is lawful, but to exploit this condition in an abusive manner.
Por last, certain behaviors that may apply in the above cases, se consideran de menor importancia y por tanto irrelevantes, if not significantly affect competition.
In Spain, we already have case law of the Supreme Court in the case of "Sugar Cartel" (STS 7 November 2013) or "Safe decennial" (STS 22 May 2015), that resolved such disputes, no need to wait for such transposition.
In fact, both decisions are being dictated by the Supreme Court as provincial courts, about claims for annulment of contracts and compensation for damages to businesses and individuals harmed by practices contrary to the rules of competition. In next posts we will discuss some of these resolutions.