The National Authority for Markets and Competition in Spain (“CNMC”) has launched a public consultation aimed at studying the dynamics behind the damage claims lodged by public entities allegedly harmed by anticompetitive conduct. 

Despite the clear legal pathways established under Directive 2014/104/EU and with public procurement representing approximately 11.5% of Spain’s GDP, the CNMC believes that the perceived underutilisation of actions for damages by public organisations represents a missed opportunity for accountability and deterrence of antitrust rules.

1. The role of the CNMC in the private enforcement of competition law

While the CNMC does not have jurisdiction over private claims, the authority has a legal obligation to play a key advisory role by issuing expert reports on damage quantification when requested to do so by Spanish courts. This is in addition to its general obligation of guaranteeing, preserving and promoting the proper functioning, transparency and existence of effective competition in all markets. Accordingly, this consultation seeks to address the deficit in public bodies proactively bringing claims for damages resulting from competition law violations, particularly those related to bid-rigging.

This new initiative is part of the CNMC’s study and research activities, and reflects its continued focus on strengthening private enforcement of competition law, following its 2023 publication of the Guide for Quantifying Harm from Competition Infringements, which provided practical tools for businesses and claimants to estimate potential damages.   The upcoming consultation aims to lay the foundation for a broader application of compensation mechanisms in Spain, in light of the growing trend towards private competition law claims.

2. Key takeaways from the consultation’s publication

This consultation will collect feedback on the extent of public entities' awareness and knowledge of damage claims as well as the primary methods used to detect competition infringements. For this purpose, the consultation is structured in two parts: the first is open to all potential stakeholders, while the second specifically targets public authorities that have either initiated competition damages actions or have relevant experience in this area. 

The consultation document reveals several key insights that the CNMC has identified as central to the current debate. In particular, the CNMC highlights a number of factors that may be contributing to the low number of competition damages claims initiated by the public sector, along with potential measures that could help encourage such claims.

Among the barriers identified by the CNMC, the main constraints are as follows: i) limited awareness of the possibility to claim for competition damages; ii) lack of technical knowledge required to bring such claims; iii) challenges in detecting competition infringements; iv) the absence of internal protocols for pursuing damages; v) insufficient incentives; vi) uncertainty around the duration and cost of judicial proceedings; vii) budgetary constraints; and viii) concerns about the potential negative impact on future public procurement processes. 

Besides providing a general overview of the problem, the public consultation invites input on the key factors the public sector should consider when deciding whether to pursue damages claims for competition law infringements. This includes the allocation of damages within public bodies and their internal decision-making protocols. 

In light of these barriers, the CNMC has also identified a list of recommended measures aimed at encouraging the public administration to file damages claims, including the following:

1. Systematically monitoring decisions and judgments issued by competition authorities and courts;
2. Improving mechanisms for detecting potential collusive behavior in public tenders;
3. Establishing internal protocols for assessing potential claims and improving decision-making processes;
4. Including damages recovery clauses in public sector contracts; and
5. Facilitating coordination or joint actions among different public entities when pursuing damages claims.
   
   3. A growing concern about competition enforcement in the public sector

These initiatives and concerns form part of the CNMC's broader efforts to promote competition, grounded in the belief that increasing awareness of the right to claim damages among consumers, businesses, and the public sector is critical to ensuring such rights are exercised when warranted. Moreover, the current consultation aligns with the CNMC’s strategic focus on fighting bid-rigging and reducing competition law infringements in public procurement. This focus is exemplified by the recent development of BRAVA (Bid Rigging Algorithm for Vigilance in Antitrust), an AI-driven tool created by the Economic Intelligence Unit of the Spanish competition authority to detect collusive practices in public procurement procedures.

Within this context, and in light of the potential initiatives emerging from the new consultation, private businesses engaging in public procurement or working alongside public sector entities should remain vigilant. The public sector may take a central role, not only from a public enforcement standpoint, but also from a private enforcement perspective. This could intensify the legal consequences for companies infringing competition law.

Open until 18 July 2025, public authorities and other stakeholders have been encouraged to participate in the consultation. It is hoped they will offer valuable insights that may help shape future competition policy and enable the alignment of their internal procedures with the growing trend towards private enforcement in competition law. 

The CNMC will analyse the contributions and publish the consultation results in due course, along with the contributions received. 

If you need more information or further guidance in this area, please contact Candela Sotés.

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