Again, the battle of harm quantification and judicial estimation

The CJEU ruling Tráficos Manuel Ferrer

Abstract

Almost a decade after the approval of Directive 2014/104/EU on damages arising from anticompetitive offenses, although the principles that inspire it are now firmly established, its practical application has encountered a myriad of problems, both substantive and procedural. The main obstacle faced today by those who exercise their right to compensation is undoubtedly the quantification of the damage. Together with the tools of access to the sources of evidence, or the presumptions to redistribute the burden of proof in the process, the possibility of judicial estimation of the compensable damage has been configured. This commentary analyzes this novel figure, following the CJEU Judgment in the Tráficos Manuel Ferrer case, as well as the Spanish jurisprudence in this respect, such as the emanating from the Commercial Court nº 3 of Valencia, and essentially the landmark Supreme Court’s sentences of June 2023. Although there are still some aspects to be defined, all these pronouncements have delimited when it is possible and when it is not possible to make use of this capacity.