Introduction: the classical problem of multiple attribution in antitrust damages
The litigation arising from the truck manufacturers cartel has forced Spanish courts to confront one of the most complex issues in competition damages law: how to structure liability when harm is caused by a plurality of infringers acting in a coordinated manner over extended periods of time.
In this context, joint and several liability is not a merely technical issue, but the point of equilibrium between two potentially competing demands:
- the need to ensure full compensation for the harm suffered by claimants, and
- the requirement to ensure a legally accurate attribution of each participant’s causal contribution to the infringement.
In the Spanish practice, the trucks cartel has served as a judicial framework for observing the transition from a fragmented and uncertain pre-existing system to a harmonised model driven by Directive – 2014/104 on actions for damages under national law for infringements of competition law (hereinafter, the “Damages Directive”).
In comparative perspective, joint and several liability of joint tortfeasors has long been a structural feature of European private law, reflected for instance in the Principles of European Tort Law (Art 9:101 PETL) and the Draft Common Frame of Reference (Art VI – 6:105 DCFR). This also broadly applies to cartel damages claims across national legal systems. The distinctive contribution of the Directive 2014/104/EU on antitrust damages, namely its Article 11 (“joint and several liability”), therefore lies not in introducing joint and several liability as such, but in clarifying its scope and structuring its limitations, particularly in relation to immunity and leniency recipients (see also COM (2013) 404 final, section 4.3.3).
The pre-Directive framework: conceptual uncertainty and fragmented solutions
In fact, however, the legal situation in Spain was by no means entirely clear prior to the transposition of Directive 2014/104/EU into national law (Real Decreto-ley 9/2017). At that time, the regime governing civil liability for competition infringements was still based primarily on domestic foundations: the Civil Code and a still-developing body of case law on antitrust damages.
Accordingly, joint and several liability was not presumed. Article 1137 of the Civil Code provides that joint and several obligations only arise where the law or the contract expressly provides for them. In the context of multiple tortfeasors such as in cartels, this created an evident difficulty: competition infringements were not accompanied by any specific statutory rule establishing joint and several liability among infringers.
As a result, pre-Directive case law oscillated between two approaches:
- a restrictive approach, requiring the individualisation of harm and its specific attribution to a given infringer; and
- a more functional or corrective approach, which accepted a form of implicit joint and several liability where the conduct was structurally unitary.
The structural problem: the impossibility of individualising harm
The core difficulty was both technical and economic: in a secret and long-lasting cartel, it is virtually impossible to determine which portion of the overcharge is attributable to each infringer.
Without a clear rule of joint and several liability, the risk was twofold:
- under-compensation of victims, if claimants were required to sue each cartel participant separately; or
- excessive liability without being clearly grounded in legal principles, if responsibility were extended without normative justification.
This structural tension explains why pre-Directive judicial practice tended to rely on pragmatic rather than systematically coherent solutions.
The Damages Directive: codifying joint and several liability as a structural rule
Directive 2014/104/EU provided codification and clarification at EU level. Its Article 11(1) establishes a clear rule: infringers of competition law are jointly and severally liable for the harm caused by the joint infringement.
This rule introduces three key elements:
- Full liability vis-à-vis the injured party. The claimant may recover the entire damage from any infringer, without needing to individualise causal contributions. The logic is straightforward: if the infringement is collective, so is the harm.
- Internal contribution among infringers. External joint and several liability is balanced by an internal contribution system. Each infringer ultimately bears liability in proportion to its participation in the infringement or the benefit obtained. The dispute is thus shifted from the victim–tortfeasor relationship to the internal allocation of liability within the cartel.
- Efficiency and effectiveness function. The Directive pursues a clear legislative objective: to ensure the effective enforcement of Article 101 TFEU by making compensation practically achievable and avoiding evidentiary complexity that would otherwise frustrate the right to damages.
This is reinforced by CJEU case law, which directly anchors joint and several liability in Article 101 TFEU:
- Tibor-Trans (C-451/18), para. 36: a single and continuous infringement entails joint and several liability of all undertakings involved.
- Tráficos Manuel Ferrer (C-312/21), para. 61: Article 11(1) of the Directive only codifies the Court’s case law.
Transposition in Spain: the consolidation of the joint and several liability model
Spanish law incorporated this system through the amendment of the Competition Act (Ley de Defensa de la Competencia) by Royal Decree-Law 9/2017. Since then, at the very latest, the general rule is clear: infringers of competition law are jointly and severally liable for the harm caused.
In this respect, it is important to situate “joint and several liability” within the broader framework of Spanish civil law. Under the Civil Code, joint and several liability (solidaridad) is not the default rule: obligations are generally presumed to be divisible and apportioned (mancomunadas) unless the law or the parties expressly provide otherwise. Joint and several liability, by contrast, is an exceptional regime that allows the creditor to claim the full performance from any of the co-debtors. This is precisely what distinguishes joint and several liability from other forms of plural liability in Spanish private law, where each debtor would otherwise only be liable for their proportional share.
From a doctrinal perspective, it is important to distinguish this classical civil law notion of solidarity from its operation in competition damages. While both are referred to in Spanish as “solidaridad”, they are not fully identical in conceptual terms. Civil Code solidarity is an exceptional allocation rule within a system that otherwise favours division of liability, whereas in competition law joint and several liability operates as a structurally mandated mechanism designed to ensure effectiveness of enforcement. For this reason, it can be defined as a functional or “improper” form of solidarity, in which the legal system deliberately departs from the principle of individualised causal attribution in order to address the evidential and economic complexity of cartel damages.
Directive 2014/104/EU and its transposition into Spanish law constitute a deliberate departure from this traditional civil law logic. In the context of competition damages, the law expressly imposes joint and several liability because the harm generated by a cartel is not realistically divisible in a meaningful or economically coherent way. The overcharge results from a single, coordinated infringement rather than from isolated acts capable of precise causal segmentation. For that reason, allocating exact portions of damage to each infringer would be both evidentially unworkable and normatively artificial. Joint and several liability therefore serves a functional purpose: it ensures full compensation for victims, avoids under-enforcement of Article 101 TFEU, and shifts the complexity of internal apportionment away from the claimant and onto the infringers themselves.
However, although the Directive’s rule on joint and several liability is formally a substantive provision and, pursuant to Article 22(1) of Directive 2014/104/EU, applies only to infringements occurring after the expiry of the transposition period, its normative significance must be read in light of the Court of Justice’s clarification in Tráficos Manuel Ferrer (para. 61), according to which Article 11(1) of the Directive merely codifies pre-existing case law of the Court. From this perspective, the apparent temporal limitation does not reflect a substantive shift from a pre-Directive regime to a post-Directive one as regards the existence of joint and several liability, but rather a formalisation of an already established principle under Article 101 TFEU. The real interpretative difficulty during the transition phase in Spain therefore did not lie in determining whether joint and several liability existed for pre-Directive conduct, but in articulating the extent to which the Directive’s codified framework could be relied upon as an interpretative benchmark for pending or transitional claims. In this sense, the trucks cartel litigation is significant not because it bridges two materially different liability regimes, but because it illustrates how Spanish courts progressively aligned pre- and post-Directive analyses around a structurally continuous understanding of joint and several liability within EU competition law.
The application of joint and several liability in the trucks cartel litigation
The evolution of joint and several liability in the trucks cartel litigation has been closely documented by Professor Francisco Marcos, who characterises the recent case law of the Spanish Supreme Court as marking a phase of “jurisprudential closure” or, at least, a consolidation of the structural parameters of cartel damages litigation. This assessment provides a useful analytical framework for understanding the role of joint and several liability within the broader consolidation of Spanish private enforcement.
The truck manufacturers cartel has been the setting in which the rule of joint and several liability has been subject to its most significant interpretative stress in judicial practice. Two issues have been particularly relevant in this jurisprudential evolution: first, the application of joint and several liability between different manufacturers; second, the position of Scania and what its treatment reveals about the internal coherence of the system.
One of the most significant controversies has been whether a claimant who purchased trucks from only one manufacturer could sue other cartel participants for the damage caused by the cartel. The emerging answer in case law is affirmative: where harm arises from a single and continuous cartel, joint and several liability is not confined to the bilateral buyer–manufacturer relationship but extends to all participants in the infringement. This reflects a strictly unitary conception of the cartel: not as a set of parallel behaviours, but as a single infringement with multiple authors.
The position of Scania has also served to test this logic. Unlike the other manufacturers, Scania was not included in the Commission’s 2016[1] settlement decision but was addressee of a subsequent decision in 2017[2], ultimately confirmed by the Court of Justice in 2024[3]. This procedural particularity generated years of uncertainty regarding the temporal and substantive scope of its liability. However, according to the Spanish courts such procedural singularity or differences in the sanctioning sequence do not alter the core principle: joint and several liability derives from participation in a single and continuous infringement, not from the formal structure or timing of the administrative decisions establishing it.
In this regard, the Supreme Court judgments of 5 and 6 May 2026 concerning Scania are particularly significant, as they expressly consolidate its integration into the general liability framework of the cartel and confirm the scope of joint and several liability to include damages arising from purchases of trucks manufactured by other cartel participants.
Read in systemic terms, and in line with Francisco Marcos’ assessment of a stabilising phase of cartel damages litigation, these judgments do not introduce a doctrinal rupture but rather reinforce the consolidation of the liability framework. The relevant development is not the emergence of new principles, but the progressive reduction of interpretative dispersion across key issues such as joint and several liability.
Supreme Court judgments (Scania, May 2026):
- ECLI:ES:TS:2026:1953
- ECLI:ES:TS:2026:1954
- ECLI:ES:TS:2026:1955
- ECLI:ES:TS:2026:1956
- ECLI:ES:TS:2026:1957
The result is a functional reading of Article 11 of the Directive: what matters is not the formal symmetry of EU or NCA administrative proceedings, but the material unity of the liability for the single and continuous anticompetitive conduct.
This is also confirmed by the CJEU case law mentioned above – precisely in the context of the trucks cartel.
Additional dimensions: umbrella damages and parent–subsidiary liability
It is also worth noting that joint and several liability in EU competition law has systemic extensions beyond direct purchaser claims. In particular, it underpins:
- umbrella damages (where non-cartel suppliers may still be liable for price effects), as is apparent from both the CJEU case law and Art 11(6) Directive, and
- parent–subsidiary liability under the economic unit doctrine. This has been further clarified by the Court of Justice in its judgment of 16 April 2026 (Joined Cases C-672/23 and C-673/23). The judgment consolidates a fully integrated model of liability in which horizontal (cartel member) and vertical (parent–subsidiary) dimensions are governed by the same underlying principle: the attribution of responsibility to the undertaking as an economic unit rather than to its individual legal components.
Conclusion: from uncertainty to functional coherence
The evolution of joint and several liability in competition damages law reveals a clear shift:
- from a pre-Directive model characterised by interpretative uncertainty and case-by-case solutions,
- to a post-Directive model based on a structural form of joint and several liability, legally mandated and functionally oriented towards full compensation.
The trucks cartel has acted as a catalyst for this transformation and has clarified the rules applicable in the transition period from pre-to post-Directive law. Within it, joint and several liability has ceased to be an exceptional interpretative device and has become a fundamental principle of the competition damages system.
By Carsten Krüger and Amelia Mora González
[1] Commission Decision of 19 July 2016 in Case AT.39824
[2] Commission Decision of 27 September 2017 in Case AT.39824
[3] Judgment of the Court of Justice of the European Union of 1 February 2024 in Case C-251/22 P
