The Enforcement of Spanish Antitrust Law : A Critical Assessment of the Fines Setting Policy and of the Legal Framework for Private Enforcement Actions

The enforcement of antitrust laws in Spain has mainly been a task for public authorities. Sanctions for antitrust infringements can only be pecuniary, as prison or other criminal penalties are not used as a punishment device. Public enforcement of antitrust laws has, therefore, taken the form of fines imposed by the State administrative authorities in charge with the enforcement of Antitrust Laws. However, the competition authorities' policy in setting the amount of fines has been rather erratic, which has led to the annulment of some of its opinions by the judicial courts. On the other hand, private enforcement of antitrust laws through civil actions is neither frequent nor encouraged by Spanish regulation, being anecdotic those cases in which antitrust offences have led private persons to claim for damages through a civil action in court. The discussion in 2005 of a major reform of the Defence Competition Act of 1989 provides an excellent opportunity to reflect critically on the enforcement of antitrust laws in Spain, specifically dealing with two of the main problems which will need to be addressed in the reform: (a) how to "make the penalty fit the crime" setting a fine that optimally punishes each infringement; (b) whether and how private enforcement has to be encouraged