In the aftermath of Directive 2014/104/EU (Directive), Spain appears to be one of the most active jurisdictions dealing with antitrust damages cases. In particular, a multitude of Spanish courts have been seized with actions for compensation in relation to the European Trucks Cartel (Case AT.39824-Trucks). In that context, preliminary ruling requests were addressed by Spanish judges to the Court of Justice of the European Union (TJUE) on key legal aspects such as the establishment of alternative forum delicti under Article 7(2) of Brussels I bis Regulation (C-30/20, RH vs Volvo) and the civil liability of legal entities that are part of the same economic unit but not addressees of fining decisions (C-882/19, Sumal).
Recently, a reference (C-267/20, RM vs Volvo et DAF Trucks) was addressed to the CJEU by the Regional Court of Léon (Court) on the temporal application of the provisions implementing Articles 10 (limitation periods) and 17 (qualification of harm) into national law (Request). In its Request, the referring Court seeks to determine, if the application of these national provisions to claims that are presented to a court after the implementation of the Directive but relate to an antitrust infringement which had ended prior to the Directive’s entry into force would be precluded by Article 22 (non-retroactivity) of the Directive.
The response by the CJEU might have significant implications for pending and future actions across the European Union (EU), and could bring additional legal certainty for claimants, defendants and judges involved in complex antitrust damages litigation.
Factual context
The Directive entered into force on 26 December 2014. The deadline for implementation was 27 December 2016. The Kingdom of Spain implemented the Directive on 27 May 2017 by Real Decreto-Ley 9/2017.
On 19 July 2016, the European Commission (EC) found in a settlement Decision (Decision) that several trucks’ manufacturers participated in a single and continuous infringement of the EU cartel prohibition (and the EEA equivalent provision) for the period between 17 January 1997 to 18 January 2011 (European Trucks Cartel).
A short press release on the adoption of the Decision was made public on 19 July 2016. A non-confidential version of the Decision has been published on the website of the EC’s Directorate-General for Competition on 6 April 2017.
On 1 April 2018, RM, who had acquired three trucks during the period between 2006 and 2007, brought an action for damages before the Commercial Court of Léon (Action) against AB VOLVO and DAF TRUCKS NV (Defendants) for the harm caused as a result of their participation in the European Trucks Cartel.
In its judgment of 15 October 2019, the Commercial Court of Léon decided inter alia that:
- no claim is time-barred under the new five-year limitation period;
- existence of harm is presumed in relation to the European Trucks Cartel;
- overcharge could be estimated at 15% of the trucks’ purchase price.
This judgment was appealed to the referring Court where the Defendants argue that: (i) the Directive and the national law implementing its provisions on limitation periods and quantification of harm are not relevant in relation to claims resulting from an infringement which ended in January 2011, and (ii) the applicable one-year Spanish pre-Directive limitation period had started to run from the date of the press release on the adoption of the Decision and had expired prior to the initiation of the Action.
Discussion
With the Request, the CJEU is asked in substance to clarify: (i) whether Articles 10 and 17 of the Directive constitute the Directive’s substantive provisions, and (ii) whether Article 22 of the Directive precludes the immediate application of the respective implementing measures to claims resulting from an infringement which ended prior to the Directive’s adoption.
- Limitation periods
Regarding limitation periods, the national judge would like to determine if the new five-year limitation period, under the rule that implements the Directive into national law, could be applied immediately to claims for which the one-year pre-Directive limitation period would have started to run, but did not yet expire.
In substance, the CJEU is asked to establish whether Article 10 of the Directive constitutes a substantive provision and, if this is the case, to determine whether the intended application of the national implementing measures to the claims resulting from the European Trucks Cartel would be precluded under Article 22 of the Directive. In that context, it should be mentioned that in some legal orders limitation periods are of procedural nature (e.g. United Kingdom). In other legal orders, where limitations are of material nature, transitional provisions were adopted on the immediate application of the five-year period to claims not yet time-barred under pre-Directive rules (e.g. Germany). Importantly, in Spain the intended application of the five-year rule is not specifically regulated by the Real Decreto-Ley 9/2017 and the legal basis thereof seems unclear.
Abundant case law exists in Spain already in the context of damages actions against the European Trucks Cartel. These judgments inter alia deal with questions on the application and the starting point of the pre-Directive Spanish limitation period. In that regard, Spanish courts, including appeal courts, have found that the one-year limitation period started to run only on 6 April 2017 with the publication of the non-confidential version of the Decision, and not on 19 July 2016 with the publication of the press release on the adoption thereof. This was for instance the outcome of the judgment by Valencia Court of Appeal of 16 December 2019, in Don Jose Pedro.
In the present case, should the interpretation of the pre-Directive rule, in line with the EU principle of effectiveness, require that the one-year limitation does not start running prior to 6 April 2017, then the claims subject to the Action, which was initiated on 1 April 2018, would not be time-barred. Guidance on the interpretation of pre-Directive limitation rules in relation to claims rooted directly in EU competition law has already been provided by the CJEU in its landmark judgment in C‑637/1, Cogeco.
- Quantification of harm
Regarding the quantification of harm, the national judge would like to determine if the new provisions on the presumption of harm and the possibility to estimate damages would apply to claims related to the European Trucks Cartel. In substance, the CJEU is asked to clarify whether Article 17 of the Directive would constitute a procedural provision applicable to the Action initiated on 1 April 2018.
Against the above, it can be recalled that, prior to the Directive, the Commission’s Communication on quantifying harm from 2013 already points to the possibility for national courts to estimate antitrust damages. Moreover, the approximative evaluation in order to comply with the EU principle of effectiveness had also been recognised by the CJEU (see for example the judgment in Mulder and others v Council). The complexity of antitrust damages claims, which predisposes for such approximate estimations, has recently been emphasised by the CJEU in the Cogeco case where it clearly stated that “the bringing of actions for damages on account of infringements of EU competition law requires, in principle, a complex factual and economic analysis” (paragraph 46). From that viewpoint, Article 17 of the Directive seems to codify pre-existing EU acquis on the effective application of Article 101 TFEU in private actions for damages.
Conclusion
Ideally, with its judgment the CJEU will establish whether the substantive or procedural character of provisions implementing the Directive in the Member States’ legal orders, as well as the scope of non-retroactivity, is determined on the basis of EU law or national law. From that viewpoint, the implication of the judgment would not be limited to the Directive’s provisions on limitation periods and quantification of harm. Therefore, a potentially ground-breaking CJEU’s judgment is to be expected in the coming months.
by Natacha Espelta, Juraj Siska and Vasil Savov
