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On Wednesday, November 8, the Official Gazette of the Spanish Parliament (BOCG) published the amendments presented by different parliamentary groups of the lower chamber relating to the draft bill implementing European Union directives in the financial, corporate and healthcare areas, and on the posting of workers (originating from Royal Decree-Law 9/2017, of May 26).

In its session on June 22, 2017, Congress discussed Royal Decree-Law 9/2017, of May 26 and put it to the vote in its entirety, agreeing to its validation and to processing the draft bill via the urgent procedure. Subsequently, the Congressional Steering Committee agreed to its referral to the Foreign Affairs Committee with full legislative powers, and the opening of a term to present amendments.

Of the 41 amendments covered in the document, 19 concern implementing the Damages Directive. These are amendments nos. 10-13 (Mixed Parliamentary Group), 18-26 (Citizens Parliamentary Group) and 36-41 (Popular Parliamentary Group in Congress). Of these amendments, 11 are changes and 8 are new additions, with no deleting amendments having been presented. Half of the amendments refer to article 3 of the draft bill, i.e., to the rules specified in the Damages Directive that have been reflected in amendments to the Unfair Competition Act (LDC). The other half concern directive provisions that have been reflected in amendments to the Code of Civil Procedure (LEC).

Many of the amendments are explanatory, such as amendment no. 22, which proposes adding the definitions given in the Damages Directive, such as “cartel” or “damages claim,” to the definitions referred to in the Fourth Additional Provision of the LDC. Amendment no. 36 also falls into the same category, as it proposes amending article 74 of the LDC, on the term for bringing damages proceedings that result from competition law infringements, thus bringing it closer to the text of the Directive. The explanatory amendments include nos. 12 and 13, which propose that the LDC indicates that certain questions will be subject to regulatory development. This is also the case when defining which competition authorities (if only national or also those of another Member State) can interrupt the term for damages proceedings due to starting an investigation or a sanction procedure (amendment no. 13, article 74 LDC).

The other, generally additional, amendments focus on bringing new elements to different aspects related to damages proceedings, including (i) the ban on public sector entities hiring individuals sanctioned for distortion of competition, (ii) active legal capacity to file class-action claims, and (iii) access to sources of evidence and matters relating to the fórum conexitatis between the commercial and first instance courts.

In relation to the ban on hiring, for example, amendment no. 19 proposes certain additions to article 65 LDC to align this rule to article 72 of the new Public Sector Contracts Act, which provides for derogations to the ban on hiring when a competition authority applies a leniency program. Amendments nos. 23, 24 and 25 propose additions to articles 11, 15 and 221 LEC, respectively, to legitimize consumers and users (and not only the associations that represent them) to file class action claims.

The document also includes amendments to change the measures for access to sources of evidence (disclosure), such as the extent of the regulation on this matter established for actions for damages for all the procedures in the LEC (amendment no. 26, articles 283 bis to quater LEC). Another example is the proposal to allow, if the defendant requests access measures to sources of evidence, that he or she can call for an interruption of the proceedings to tender a plea (amendment no. 40, article 283 bis LEC). Lastly, amendments nos. 37, 38 and 41 deal with questions relating to forum conexitatis between the commercial and first instance courts, aimed at promoting the joinder of actions and counterclaims in favor of the commercial courts (articles nos. 73, 77 and 406 LEC, respectively).

The draft bill is pending a report by the panel, after which it will be discussed and approved by the Foreign Affairs Committee, and subsequently referred to the senate to continue its parliamentary process.

For more information on the parliamentary process of implementing the Damages Directive into Spanish legislation, click here and here.

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