Spain has become a key forum for competition damages in Europe. A high volume of follow-on claims has pushed courts to focus on how damages are pleaded, evidenced and assessed, even where liability is already established. Through repeated engagement with the Court of Justice, Spanish judgments now also influence EU-wide standards on liability, limitation and evidence. For businesses, they provide a practical guide to how full compensation is applied, distinguishing clearly provable losses from speculative claims.
Loss of profit: high value, high scrutiny
Loss of profit is recognised under EU and Spanish law but requires stronger evidence than claims for direct losses. This is especially true for exclusionary conduct, where courts must assess alternative market outcomes influenced by competitors, third parties and the claimant’s own performance. Regulatory guidance confirms that recovery is only possible when the counterfactual is based on the claimant’s actual position and realistic market conditions.
The Nokia decision: liability accepted, profits rejected
A recent Madrid Commercial Court ruling concerning Nokia Spain illustrates how these principles are applied. The claim followed a competition authority decision relating to conduct that affected a public tender. The court accepted the infringement findings and awarded compensation for demonstrated, reliance-type losses.
What it did not accept was a substantial claim for projected profits over an extended period. The court was not satisfied that the claimant had shown, on the balance of probabilities, that it would have secured the contract in question or achieved the projected returns in a scenario without the infringement.
The court was also critical of the economic analysis underpinning the claim, noting that assumptions were insufficiently anchored in the claimant’s own performance data and relied too heavily on abstract benchmarks. In those circumstances, the court declined to estimate profits judicially, making clear that this power is reserved for cases where uncertainty arises despite otherwise robust foundations.
How this affects business risk and decision-making
For businesses, recent Spanish case law shows that competition damages risk is increasingly driven by quantum rather than liability. Courts are willing to compensate clearly evidenced losses, but they are far less receptive to speculative profit projections. This narrows ultimate exposure, but it does not reduce the cost or complexity of defending claims.
In practice, the main commercial risk often lies in lengthy, expert-led disputes over damages, which generate significant defence costs and management distraction even where headline figures are cut back. How a case is framed and challenged at an early stage can materially affect both the financial outcome and the duration of the dispute.
These claims typically sit at the intersection of legal, financial and operational risk. They evolve over many years, raise difficult questions around scope of cover and aggregation, and require a realistic assessment of downside exposure rather than reliance on pleaded numbers.
Spanish courts are therefore sending a clear signal to businesses: competition risk needs to be managed proactively, with litigation strategy, economic evidence and risk transfer aligned from the outset. That alignment, rather than ambitious profit claims, is increasingly what determines commercial outcomes.
W Denis works with businesses facing competition risk to translate legal and economic uncertainty into a clear financial risk profile. That includes stress-testing potential damages scenarios beyond headline figures, assessing how defence costs are likely to develop in expert-heavy disputes, and identifying where exposure may sit across existing liability programmes.
If you would like to discuss how your business can manage competition risk and ensure potential claims are properly assessed and covered, please contact Daniel Moss at [email protected] or on 0044 (0)113 2439812 or contact Mark Dutton at [email protected] or on 0044 (0) 7831 366 469.
