In his opinion of 28 October 2021 (‘Opinion’), Advocate General (‘AG’) Rantos confirmed that the nature of the rules implementing the EU Damages Directive (‘Directive’) is determined by EU law and not by national law. The AG states that the provisions on limitations and presumption of cartel-related harm are substantive. In contrast, the possibility for national judges to estimate the amount of harm is a procedural provision. Moreover, AG Rantos considers that pre-Directive knowledge-based limitation periods applied to cartel damage claims could reasonably begin with the publication of a fining decision’s multilingual summary.
The Opinion rightly suggests that certain Directive’s provisions reflect the EU Court of Justice’s caselaw on applying the EU principle of effectiveness. It explains that national courts are not precluded from referring to the Directive when interpreting pre-Directive national rules in conformity with EU law. What is less clear, however, is the reference of the AG to an objective event, namely the date of publication of short multilingual summaries of fining the decisions, as a crucial element for the starting point of a subjective pre-Directive limitation period, irrespective of the specific circumstances of each case.
On 19 July 2016, the European Commission (‘Commission’) sanctioned several truck manufacturers for participating in an EEA-wide cartel between 17 January 1997 and 18 January 2011 (‘LKW-Kartell’). A press release on adopting the Commission decision appeared on 19 July 2016. The non-confidential version in English of that decision and its multilingual summary were published on 6 April 2017.
Meanwhile, the Directive, which entered into force on 26 December 2014, with the implementation deadline on 27 December 2016, was transposed into Spanish law by Real Decreto-Ley 9/2017 of 27 May 2017.
Having bought trucks during 2006 and 2007, the Spanish company RM sued AB VOLVO and DAF TRUCKS NV for damages in the Commercial Court of Leon (‘Court’), Spain, on 1 April 2018. In 2019, the Court stayed the proceedings and referred several questions to the Court of Justice of the European Union (‘CJEU’). The questions concern the application to the claims of rules implementing Article 10 and Article 17 of the Directive into Spanish law and the conform interpretation of the Spanish one-year statute of limitations rule that predates the Directive, in accordance with the EU principle of effectiveness.
Discussion by the Advocate General
The Opinion begins by pointing out that, although the action for damages was brought after the entry into force of the Directive and the transposition provisions, the action relates to an infringement that ended before the new provisions (para. 23). AG Rantos recalls that under Article 22(1) of the Directive, (i) national provisions adopted to comply with the Directive’s substantive provisions do not apply retroactively (para. 32), while (ii) the procedural provisions apply to actions brought after the entry into force of the Directive (para. 36). The Opinion then explains that the EU legislator did not specify which of the Directive’s provisions are substantive or procedural. According to the AG, this has led to divergent approaches in the Directive’s transposition between the Member States. Such an outcome, however, undermines the objective of ensuring the uniform application of competition law throughout the EU and hinders the legal certainty requirement(para. 43). Therefore, AG Rantos advises that the question of which Directive’s provision is substantive, and which is not must be assessed under EU law and not under national law (para 58).
Thus, the Directive’s provisions on limitations (paras. 64 to 69) and the presumption of harm (paras. 78 to 84) are substantive. In contrast, the possibility for national judges to estimate the amount of harm is a procedural provision (paras. 70 to 77).
Thus, the Opinion specifies that the Directive’s procedural provisions apply in casu, while the provisions described as substantive are deprived of retroactive effect and do not apply (para. 52). The relevant moment for determining the temporal application of national rules adopted to comply with the Directive’s substantive provisions would be the event giving rise to the conditions of liability, that is the occurrence of the antitrust infringement (para 49). Therefore, the damage claims had to be governed by the substantive provisions in force at the time of the infringement.
As for the compliance of the Spanish pre-Directive subjective limitation rule with the EU principle of effectiveness, the AG stated that all the relevant elements— such as duration, starting point, and possibilities for suspension or interruption—should be assessed together (paras. 99 to 102). National rules and their interpretation on the subjective limitation period’s starting point must be adapted to the specific features of competition law (para. 106). The AG then specified that sufficient knowledge of certain crucial elements is needed before initiating a damages action (para. 107).
According to the Opinion, the victims of competition infringements have no general duty of diligence—be it consumers or professionals—to follow the publication of fining decisions’ press releases (paras. 118 to 121). That said, for the starting point of any subjective limitation period in follow-on actions for damages, awareness of all crucial elements should be presumed at the date when a multilingual summary of a fining decision is published in the EU Official Journal (para. 122 and para. 133). This presumption would be rebuttable. The AG further states that the right of a harmed person to sue for damages would arise upon adoption of the fining decision, and more precisely, its publication in the EU Official Journal (para. 123).
Finally, throughout the Opinion, the AG identifies elements revealing that to a large extent (with few exceptions), the Directive harmonizes how the EU effectiveness principle—as defined in the case-law of the CJEU—is enshrined in the national (implementation) laws governing actions for antitrust damages (see Article 4 of the Directive). The AG also recalls that other relevant rules not specifically dealt with by the Directive must also be applied or interpreted in accordance with the principle of effectiveness. Yet the AG is not more specific and straightforward on the effet utile of the Directive’s substantive provisions when assessing the effective enforcement of claims predating the Directive’s entry into force and implementation.
It is evident that the nature of the Directive’s provisions and their national implementation are determined under EU law. Disturbingly, however, the AG does not discuss that the Supreme Courts of several Member States had referred to the Directive’s substantive provisions when they interpreted the pre-Directive national rules in accordance with the EU principle of effectiveness. Rather than pointing to the Directive’s effet utile, an unnecessary reference is made to the Fiches pratiques of a Member State where antitrust damages litigation never really took off before or after the Directive.
It is also not convincing that, for the relevant time for applying substantive provisions, the Opinion mixes the (single) end date of the continuous infringement with the (multiple moments of) occurrence of individual harm. Should the substantive provisions of the Directive apply to all claims for damages where the antitrust infringement begins before the adoption/implementation of the Directive and ends afterward? The Opinion also does not discuss the Directive’s effectiveness-oriented purpose (both procedural and substantive provisions) and the principle of subsidiarity that underlies its adoption. The Opinion also seems to consider that a single objective element plays a key role in commencing the limitation period. The AG might play the sorcerer’s apprentice role by ensuring a conform interpretation of the Spanish one-year subjective limitation period with EU law while omitting the most important piece of the puzzle, the (required) subjective knowledge of the harm. According to the well-established case-law of the Spanish Supreme Court, in accordance with the EU principle of effectiveness, the one-year limitation period must be interpreted narrowly on a case-by-case basis. Thus, for the starting point of such a short limitation period, knowledge of the specific (individual) harm (and even its precise extent) plays a key role. Typically, determining antitrust-related harm requires comprehensive data collection and careful analysis. The AG, however, seems to overlook the fact that knowledge is inherently subjective and cannot simply be presumed (for everyone), independent of the specific circumstances of a case, at the date of publication of a short multilingual summary of a fining decision.
By Juraj Siska and Vasil Savov