The ECJ Clarifies Temporal Scope Of Considerations On Actions For Damages Incurred Due To Cartel Activity – Cartels, Monopolies – Malta


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On 22 June 2022, the European Court of Justice (the
“ECJ”) responded to a request for
preliminary ruling from the Provincial Court of Léon in
Spain (the “Provincial Court”). The
Provincial Court’s request emanated from the proceedings
regarding Volvo AB & DAF Trucks NV
(“V&D”) and RM, whereby RM introduced
an motion for damages searching for compensation from V&D as a consequence of
their participation to a cartel present between 1997 and 2011,
which is opposite to Art. 101 of the Treaty on the Functioning of
the European Union (“TFEU”). The request
introduced ahead by the Spanish Court sought clarifications on the
temporal scope of the principles governing the next three
elements when contemplating an motion for damages because of the
existence of a cartel:

  1. The limitation interval for bringing an motion for damages;
  2. The quantification of the hurt incurred; and
  3. The rebuttable presumption of the existence of hurt ensuing
    from a cartel.

Background

During 2006 and 2007, RM had bought three vans which have been
manufactured by V&D. Circa a decade later, the European
Commission (the “Commission“) issued a
choice on 19 July 2016, whereby it deemed V&D to have
participated to a cartel lasting between 1997 and 2011, whereby the
participators agreed on, inter alia, fixing the costs of
the vans they offered, thereby infringing Art. 101 of the TFEU (the
“Decision”). Upon being knowledgeable of the
Decision, RM sued V&D earlier than the Commercial Court of
Léon in Spain (the “Commercial
Court”
) on 1 April 2018, searching for compensation for the
hurt it suffered due to the cartel.

From a procedural standpoint, the Commercial Court thought-about
RM’s motion to be admissible, because it thought-about RM’s motion
to be inside the 5-year limitation interval prescribed by the Spanish
laws transposing Article 10(3) of Directive 2014/104
governing actions for damages incurred from infringements of
competitors regulation (the “Directive”). The
Commercial Court additionally discovered RM’s motion to be substantively
well-founded, counting on Article 17(2) of the Directive which
establishes the rebuttable presumption that cartels trigger hurt to
these affected by them. Considering the above, the Commercial Court
ordered for V&D to pay RM compensation. V&D appealed this
judgement earlier than the Provincial Court, arguing that the motion is
time-barred because the cartel had ceased earlier than the transposition of
the Directive into Spanish regulation. Said enchantment led to the request for
the preliminary ruling at hand.

The ECJ’s Assessment

The ECJ firstly referred to Article 22 of the Directive, which
establishes the temporal purposes that nationwide courts are to
comply with when transposing the Directive’s measures. Article 22
distinguishes between the temporal utility to substantive and
non-substantive provisions adopted in mild of the Directive. In
relation to the previous, their retroactive utility is expressly
prohibited, whereas for the latter, their utility is just
allowed in relation to actions for damages introduced after 26
December 2014.

Following the above, the ECJ delved into the temporal
applicability of Article 10 of the Directive, which governs the
limitation durations that Member States are to implement once they
transpose the Directive, to the case at hand. The ECJ firstly
established that Article 10 is a provision of substantive nature
since its interpretation might decide the result of the authorized
motion. The subsequent step was to analyse whether or not Article 10 was utilized
retroactively within the case at hand.

It was famous that the Directive, whose transposition into
Spanish regulation had a deadline fastened on 27 December 2016, was truly
transposed into Spanish regulation 5 months later. To establish the
temporal applicability of Article 10, the ECJ needed to firstly
establish whether or not the limitation interval which was relevant to the
case at hand had elapsed previous to the expiry date for the
Directive’s transposition. Prior to the Directive’s
transposition, the Spanish provisions in power on the time had
prescribed a one-year limitation interval to circumstances of this kind, and
the limitation interval would have begun to run as soon as the infringement
would have ceased and the injured occasion would have been fairly
anticipated to know that s/he has; incurred hurt; recognized the
causal hyperlink between the hurt incurred and the infringement of
competitors regulation; and recognized the identification of the individual
committing mentioned infringement. On this entrance, the ECJ established
that the limitation interval on this case had commenced on the day in
which the Commission had printed a abstract of the Decision, which
was 6 April 2017, since mentioned abstract contained all the knowledge
that RM wanted to carry an motion for compensation based mostly on an
infringement of Art. 101 of the TFEU. Considering the above, the
ECJ concluded that RM’s motion falls inside the temporal scope
of Article 10 of the Directive, because the limitation interval
relevant beneath the outdated Spanish legal guidelines had not elapsed previous to the
expiry date for transposing the Directive into Spanish regulation.

The ECJ then analysed the temporal applicability of Article
17(1) of the Directive, which principally authorises nationwide courts
to estimate the quantity of damages incurred by an injured occasion when
it’s excessively tough to quantify the damages incurred by an
injured occasion. In this regard, the Court ascertains that it is a
provision of a procedural nature, because it pertains to figuring out
the usual of proof required. Given that RM introduced his motion
in opposition to V&D on 1 April 2018, and the temporal utility to
non-substantive provisions are allowed if they’re introduced after 26
December 2014, the ECJ confirmed that RM’s motion is inside the
temporal scope of Article 17(1) of the Directive, regardless of the
cartel ceasing previous to the entry into power of the Directive.

With regards to Article 17(2) of the Directive, the ECJ famous
that it’s a provision of a substantive nature because the incurrence of
hurt is among the obligatory components for a declare of civil
legal responsibility, and so the presumption of hurt imposed by mentioned article
might affect the result of a authorized motion. Due to its substantive
nature, the ECJ concluded that Article 17(2) just isn’t temporally
relevant to RM’s motion. This is as a result of the aspect which
provides rise to the presumption of hurt beneath Article 17(2) is the
existence of the cartel, and so the truth that the cartel ceased
previous to the transposition of the Directive, its utility in
this case can be retroactive, and subsequently, prohibited.

Having obtained the above interpretations from the ECJ, the onus
of deciding how the case between RM and V&D is to proceed has
now reverted onto the Provincial Court.

This article was first printed within the Malta
Independent.

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