Landmark antitrust victory for Spanish client Musaat
Written By
Of Counsel
Spain
I am a Of Counsel in Bird & Bird's Intellectual Property/Dispute Resolution department in the Madrid office.
Partner
Belgium
With over 30 years based in Brussels, my practice is a leading authority in competition law, covering articles 101 and 102, state aid, merger control and more.
Our firm secured a landmark victory for our client Musaat, in a case that is notable for being one of the first antitrust private enforcement actions in Spain, as well as one of the largest awards of antitrust damages to an individual company in the country.
Our cross-border team was led by partner Antonio Cueto in Madrid and assisted by partner José Rivas in Brussels, a great example of how our cross-border expertise benefits our clients.
At the time of the Spanish construction boom, it became compulsory under Spanish law for developers to purchase an insurance policy to guarantee any construction defects for the first 10 years. Musaat, an insurance provider for the construction industry, launched an insurance product which was on average 24% cheaper than three other insurance providers - Caser, Scor and Asefa. These companies then formed a cartel and boycotted Musaat and forced its reinsurer to withdraw its reinsurance. Musaat found an alternative reinsurer which was more expensive, resulting in a considerable loss of turnover and market share for our client.
In 2009, the Spanish Competition Authority imposed a large fine on Caser, Scor and Asefa for their participation in this price fixing cartel, but the companies retaliated and organised a boycott against Musaat.
The case went on for many years with numerous appeals from Caser, Scor and Asefa. In 2015, following two persuasive requests by our lawyers, the European Commission submitted, for the first time in Spain, observations on the case before the Spanish Supreme Court.
Finally, on 23 September 2020, the Spanish Supreme Court dismissed the appeals and condemned the three companies for boycott and acts of retaliation against Musaat. The judgment is now final.
This stands out as the first (and so far only) case where the European Commission has intervened by offering observations in judicial proceedings in Spain.
Antonio Cueto said of the case: “This case sets a very important precedent in Spain in the field of claims for damages in connection to antitrust infringements."
José Rivas said: “The intervention of the European Commission before the Spanish Supreme Court illustrates what collaboration between our firm’s Madrid and Brussels lawyers can achieve.”