The ECJ clarifies the temporal scope of considerations on actions for damages suffered due to cartel activity – Cartels, monopolies

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On June 22, 2022, the European Court of Justice (the
“ECJ”) responded to a request for a preliminary ruling from the Provincial Court of Léon in Spain (the “Provincial Court”). The Provincial Court’s request arose from the proceedings concerning Volvo AB & DAF Trucks NV (“V&D”) and RM, whereby RM brought an action for damages to compensate V&D for their participation in a cartel existing between 1997 and 2011, which is contrary to Art. 101 of the Treaty on the Functioning of the European Union (“TFEU”). The request made by the Spanish court sought clarification on the temporal scope of the rules governing the following three elements when considering a claim for damages due to the existence of a cartel:

  1. The limitation period for bringing an action for damages;

  2. Quantification of the harm suffered; and

  3. The rebuttable presumption of the existence of damage resulting from an agreement.

Background

In 2006 and 2007, RM purchased three trucks manufactured by V&D. About a decade later, the European Commission (the “Commission“) issued a decision on July 19, 2016, in which it considers that V&D participated in a cartel which lasted between 1997 and 2011, in which the participants agreed, among others, fixing the prices of the trucks they sold, thereby violating s. 101 TFEU (the
“Decision”). Informed of the Decision, RM sued V&D before the Commercial Court of Léon in Spain (the “The Commercial Court”) on April 1, 2018, seeking compensation for the harm it suffered as a result of the agreement.

From a procedural point of view, the commercial court considered that RM’s action was admissible, because it considered that RM’s action was within the 5-year limitation period provided for by the Spanish legislation transposing the Article 10(3) of Directive 2014/104 governing actions for damages suffered from infringements of competition law (the “Directive”). The Commercial Court also held that RM’s action was founded on the merits, relying on Article 17(2) of the directive, which establishes the rebuttable presumption that cartels cause harm to those affected. they affect. In view of the foregoing, the Commercial Court ordered V&D to pay compensation to RM. V&D appealed against this judgment before the Provincial Court, arguing that the action was time-barred since the cartel had ceased before the directive was transposed into Spanish law. This appeal led to the request for a preliminary ruling at issue.

The ECJ assessment

The ECJ first referred to Article 22 of the directive, which establishes the temporal applications that national courts must follow when transposing the measures of the directive. Article 22 makes a distinction between the application in time of material and non-material provisions adopted in the light of the directive. For the former, their retroactive application is expressly prohibited, while for the latter, their application is only permitted with respect to actions for liability brought after December 26, 2014.

Following the above, the CJEU considered the temporal applicability of Article 10 of the Directive, which governs the limitation periods that Member States must implement when transposing the Directive, in the event of ‘species. The CJEU first established that Article 10 is a provision of a substantive nature since its interpretation may determine the outcome of the legal action. The next step was to analyze whether Article 10 was applied retroactively in this case.

It was noted that the directive, whose transposition into Spanish law had a deadline of December 27, 2016, was effectively transposed into Spanish law 5 months later. To determine the temporal applicability of Article 10, the ECJ first had to determine whether the limitation period applicable to the case in question had elapsed before the expiry date of the transposition of the directive. Prior to the transposition of the Directive, the Spanish provisions in force at the time provided for a limitation period of one year for cases of this type, and the limitation period would have started to run once the infringement had ceased and that the aggrieved party would have been reasonably expected to have; sustained prejudice ; identified the causal link between the harm suffered and the breach of competition law; and identified the identity of the person who committed said offence. In this regard, the CJEU established that the limitation period in this case started to run on the day the Commission published a summary of the Decision, i.e. 6 April 2017, since the said summary contained all the information that RM had necessary to bring an action for damages based on a violation of Art. 101 TFEU. In view of the above, the CJEU concluded that RM’s action fell within the temporal scope of Article 10 of the Directive, since the limitation period applicable under the old Spanish laws had not expired. before the expiry date for the transposition of the directive into Spanish law.

The CJEU then analyzed the temporal applicability of Article 17(1) of the Directive, which essentially allows national courts to estimate the amount of damages suffered by an injured party when it is excessively difficult to quantify the damage suffered by an injured party. In this regard, the Court finds that this is a procedural provision, since it concerns the determination of the standard of proof required. Given that RM brought its action against V&D on April 1, 2018 and that the application in time of the non-substantive provisions is authorized if they are introduced after December 26, 2014, the ECJ confirmed that the action of RM falls within the scope temporal application of Article 17(1) of the directive, although the cartel ceased before the entry into force of the directive.

With regard to Article 17(2) of the Directive, the CJEU noted that this is a provision of a substantive nature, since the occurrence of damage is one of the necessary elements for a action in civil liability, and therefore the presumption of damage imposed by said article may influence the outcome of a legal action. Due to its substantive nature, the CJEU concluded that Article 17(2) was not temporally applicable to RM’s action. Indeed, the element which gives rise to the presumption of harm under Article 17(2) is the existence of the cartel, and therefore the fact that the cartel ceased before the transposition of the directive , its application in this case would be retroactive , and therefore prohibited.

Having received the above interpretations from the ECJ, the onus of deciding how the matter between RM and V&D should proceed now rests with the Provincial Court.

This article first appeared in the Malta Independent.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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