THE SUPREME COURT SETS THE MINIMUM MARK-UP AT 5 PER CENT

Introduction

The Supreme Court has just issued two judgements that appear to lay the foundations for the future of litigation in the so-called “car cartel” case.

The car cartel involved the exchange of confidential information between manufacturers and distributors in Spain, mainly between 2006 and 20131. The manufacturers shared data on profit margins, discounts and commercial strategies, thereby reducing competition between brands and causing harm to consumers. The Spanish Competition Authority (“CNMC”) imposed fines totaling 171 million euros on the cartel members in 2015, and the Supreme Court upheld the fines against the car manufacturers in 2021 (except for the Volkswagen Group, which joined the leniency programme, and Mazda). This cartel has led to mass litigation in Spain, where thousands of claims have been filed against the manufacturers, in most of the known cases, the claims refer to one single vehicle, typically purchased by a consumer, and the amount of the dispute is below 3.000 €.

Until now, there had been widely divergent positions amongst the various Provincial Courts across the country: whilst the vast majority of them had adopted the famous 5 per cent figure that the Supreme Court had generally awarded in the “trucks cartel” case, a few Provincial Courts had departed from this criterion and set the loss suffered by those affected at 2 per cent or even less, meaning that purchasers affected by the same cartel could obtain materially different compensation depending on the court hearing their claim. However, following the publication of these rulings, the issue of minimum compensation for damages (as well as the joint and several liability of the cartel members) has now been resolved.

The judgments

With the publication of these judgments handed down on 22 October, the Supreme Court has definitively established that the price mark-up imposed by the car cartel is at least 5 per cent provided that the plaintiffs’ expert reports meet the minimum evidential threshold.

To reach this conclusion, the Supreme Court employs the same reasoning as in Judgment No. 1635/2026, dated October 21, regarding the “milk cartel” establishing that Spanish law contains no quantitative presumption of overcharge, which in practice amounts to a default of zero. Although that approach avoids overcompensation, it leaves cartel victims largely uncompensated. Against that background, the Court notes that several European courts are converging a practical minimum overcharge of around 5 per cent. It refers to Royal Mail & BT v DAF, decided by the Competition Appeal Tribunal in 2023 and upheld by the Court of Appeal in 2024; to Posten Bring, decided by Norway’s Borgarting Court of Appeal in 2025; and to two judgments delivered by the Higher Regional Court of Stuttgart in 2025. It also relies on the CJEU’s case law on effectiveness and full compensation, in particular Otis (C-435/18), Volvo and DAF Trucks (C-267/20) and Tráficos Manuel Ferrer (C-312/21).

Among others, in Judgment No. 1645/2026, the Supreme Court holds that “justifying a sum of compensation which, being less than 5 per cent of the price, is insufficient to compensate for the loss suffered as a result of the price premium paid for the vehicles subject to the cartel, which, given the circumstances, cannot be considered insignificant.”

In this regard, the Supreme Court points out that “although the Directive does not establish a minimum percentage, it provides the basis for ensuring that the impossibility of an exact quantification does not lead to the dismissal of the claim, and EU law requires that sanctions be effective, proportionate and dissuasive. In the words of the aforementioned Stuttgart court, the ‘inevitable degree of uncertainty’ in determining the hypothetical competitive price must not be borne by the injured parties, since that uncertainty is a direct consequence of the unlawful collusion’. It concludes that ‘the possibility of relying on a presumption of damage and resorting to a judicial estimate of its amount’ is viable, especially when other countries estimate the damage caused by cartels at 10 per cent (Latvia and Hungary) and 20 per cent (Romania).

Furthermore, the Supreme Court has once again recognized the principle of joint and several liability among cartel members, which further strengthens the protection afforded to those affected; in line with the rulings handed down on May 6 of this year in the “truck cartel” case involving Scania2, specifically in the aforementioned ruling No. 1645/2026, the Supreme Court states the following:

“[J]oint and several liability for compensation for the damage caused by cartel activities carried out by a number of infringers is an inherent consequence of the effectiveness of Articles 101 TFEU and 1 of the Competition Act, and even serves as a deterrent against anti-competitive conduct, in that those who have suffered harm may claim compensation from any of the participants in the cartel.

This joint and several liability is based on the impossibility of identifying the causal contribution of each cartel member to the damage. The damage caused by the cartel consists of the overcharge paid by the purchaser, and that damage arises from the collusive agreement in which all the sanctioned manufacturers participated, irrespective of the specific cartel member from whom the claimant purchased the car. Notwithstanding this, as already provided for in Article 1145 of the Civil Code and now in Articles 11(5) of Directive EU/104/2014 and 73(5)I of the LDC, an infringer who has paid compensation may, in subsequent proceedings, seek recourse against the other infringers for an amount to be determined on the basis of their relative liability for the damage caused. 4. This joint and several liability strengthens the protection afforded to those who have suffered harm, since if it is the joint conduct of the infringers that has caused the damage, the injured party is not required to identify a specific causal contribution (the classic ius electionis of joint and several obligations comes into play here). Therefore, from a purely procedural point of view, the joint and several liability of the participants facilitates claims by the injured parties, whilst shifting the allocation of liability to the internal sphere of the infringers”.

Comparative case law

As we have mentioned, the fact that Spain (and most European countries) does not quantify the harm caused by cartels poses an added difficulty when it comes to awarding damages that satisfy those affected and achieve the deterrent effect sought by competition law.

For this reason, the Supreme Court draws on comparative case law3 and notes that “in judicial practice, several European courts are converging on the idea of a practical presumption of a minimum price mark-up (or mark-down, depending on the type of cartel), often set at around 5 per cent, as a mechanism to ensure the effectiveness of the right to compensation when exact quantification is particularly complex”.

In this regard, the well-known judgments of December 12, 2019, C-435/18, Otis GmbH; the CJEU judgment of June 22, 2022, C-267/20, AB Volvo and DAF Trucks, and the CJEU judgment of February 16, 2023, C-312/21, Tráficos Manuel Ferrer, which laid the groundwork for private enforcement, have already established that any affected party is entitled to full compensation for damages, opening the possibility of resorting to judicial estimation of damages when quantifying them proves difficult. Therefore, the Supreme Court concludes that “it would be contradictory to recognize that a cartel resulted in overpricing or underpricing and to legally presume that it caused harm yet deny any compensation because the exact cost could not be reconstructed with econometric precision”.

Taken together, these European judgments support a more precise account of European alignment: courts are looking for workable ways to compensate proven cartel harm without demanding unattainable precision, and 5 per cent has emerged in several cases as a cautious reference point. Their methods and results nevertheless differ. Article 17(1) of Directive 2014/104/EU captures the underlying balance by allowing judicial estimation where harm is established, but its precise quantification is practically impossible or excessively difficult. The comparative support for the Spanish approach lies in that shared concern for effective redress, not in the mechanical transplantation of a percentage from trucks, postal logistics or bathroom fittings to car cartel. A reasoned minimum must remain responsive to the infringement and the record before the court; otherwise, the effort to avoid undercompensation risks creating a different form of arbitrariness.

Minimum damage and deterrent effect

The Supreme Court stresses, however, that this is neither a punitive award nor a fixed tariff. It describes the figure of the 5 per cent as a minimum level of damage inferred from the existence and features of the cartel and quantified through judicial estimation. Although the 2014 Damages Directive does not apply to these claims, for temporal reasons and because the infringement was established by a national authority, the Court nevertheless considers that the same reasoning applies. It also rejects as insufficient the arguments relied on by the lower courts to justify an award of 2 per cent, chiefly the narrow margins in car distribution. In the Court’s view, such an award does not adequately compensate the purchasers and lacks deterrence effect.

The significance of the Supreme Court’s rejection of an award below 5 per cent, as described above in relation to Judgment No. 1645/2026, is therefore not confined to the arithmetic of compensation. It also concerns the credibility of private enforcement. Read together, the findings that 2 per cent inadequately compensates purchasers and lacks deterrent effect address two sides of the same problem: a remedy that leaves a substantial part of the loss with the purchaser does not fully confront the infringer with the consequences of its conduct. On that reading, the minimum of 5 per cent is intended to prevent evidential uncertainty from reducing an established entitlement to little more than nominal redress, rather than adding a penalty to compensation.

As said above, the Supreme Court, relying on existing European case law, clearly distinguishes between the deterrent effect of damages and punitive damages. In the Otis et al. case, the CJEU explained that the right to claim damages reinforces the functioning of competition rules, as it discourages covert agreements and practices that may restrict competition (judgment of December 12, 2019, C-435/18, EU:C:2019:1069, paragraphs 22–25). However, Article 3(2) and (3) of Directive 2014/104/EU defines full compensation based on the situation in which the injured party would have found itself had the infringement not occurred and expressly excludes overcompensation through punitive or multiple damages. Deterrence is, therefore, a consequence of the effective enforcement of civil liability, and not a separate basis for awarding compensation in excess of the harm suffered. Similarly, the cited CJEU judgment does not in itself establish a minimum of 5 per cent: the numerical assessment must be based on the evidence and the characteristics of the infringement.

Estimation of minimum damages.

As we have mentioned, the Supreme Court uses similar arguments as in the milk cartel to establish a minimum harm in the car cartel cases, drawing on European case law such as Otis, Volvo-DAF, and Transportes Manuel Ferrer.

However, the conclusions reached in both cases are quite different, and this is due primarily to (i) the severity of the sanctioned conduct, (ii) the actual duration of the cartels, (iii) the exclusion of certain time periods, and, above all, (iv) the share of the affected market.

Therefore, setting a minimum compensation of 5 per cent in the car cartel looks appropriate, considering the nature, duration, and impact on the market.

Conclusions

The significance of these judgements is truly considerable, as they definitively open the door to claims against any sanctioned member of the cartel. In practical terms, this freedom to choose the defendant means that claims relating to several brands can be brought against a single cartel member, which may be selected by reference to its solvency, location or procedural convenience.

Finally, and most importantly, by setting the 5 per cent as the minimum level of compensation, the victims of the “car cartel” will finally be compensated for the harm they suffered, while at the same time achieving the deterrent effect pursued by competition law.

Disclaimer: Suderow Fernandez represents claimants in similar cases.

• 1https://legalblogs.wolterskluwer.com/competition-blog/mass-antitrust-damage-claims-in-spain-against-the-car-manufacturers-cartel/
• 2First Chamber Judgments No. 680, No. 681, No. 682 and No. 683/2026, 6th of May.
• 3Judgment of February 7, 2023, by the Competition Appeal Tribunal (CAT) in London, Royal Mail & BT v. DAF, affirmed by the judgment of the Court of Appeal dated February 27, 2024 (cases CA-2023-001010 and CA-2023-001109); judgment of March 17, 2025, by the Norwegian Borgarting lagmannsrett, Posten Bring; judgments of February 27, 2025, and November 20, 2025, by the Oberlandesgericht (OLG) in Stuttgart, Germany]