AG Medina on limitation periods in follow-on damages claims
On 3 April 2025, Advocate General (AG) Laila Medina delivered her Opinion in Case C‑21/24 CP v Nissan Iberia, S.A., a reference for a preliminary ruling from the Commercial Court No. 1 of Zaragoza, Spain. The case addresses a fundamental issue in the enforcement of EU competition law: When does the limitation period begin for a follow-on damages claim based on a national competition authority (NCA) decision that is under judicial review?
The background: a long road to damages
The case originates from the Spanish competition authority’s (CNMC) decision in Case S/0482/13, concerning several automobile manufacturers. On 23 July 2015, the CNMC concluded that Nissan and other car companies had participated in an infringement of Article 101 TFEU and Spanish competition law by exchanging confidential and commercially sensitive information over a prolonged period. This conduct, according to the CNMC, distorted competition by allowing the undertakings involved to align their strategies and pricing policies to the detriment of consumers.
The decision was accompanied by a press release on 28 July 2015 and was published in full on the CNMC’s official website on 15 September 2015. However, the decision was promptly challenged in the Spanish courts by multiple addressees, including Nissan, through actions for annulment. These judicial proceedings extended over several years.
In June 2021, the Spanish Supreme Court delivered its ruling, upholding the CNMC’s findings and confirming the legality of the infringement decision. This judicial confirmation marked the point at which the CNMC’s decision became final and enforceable under Spanish law.
It was not until March 2023 that CP, a consumer who had purchased a vehicle from Nissan during the cartel period, brought a follow-on action for damages. CP claimed to have overpaid due to the anticompetitive practices uncovered in the CNMC investigation. Nissan, in its defense, argued that the claim was time-barred. It maintained that the one-year limitation period applicable under Spanish civil law started running in September 2015, when the CNMC published its decision online.
The Spanish Commercial Court No. 1 of Zaragoza expressed doubt as to whether the limitation period could begin before the final confirmation of the infringement. It decided to refer the matter to the Court of Justice of the European Union, seeking clarification on whether national limitation rules that trigger the dies a quo at the time of online publication, rather than at the conclusion of judicial review, are compatible with Article 101 TFEU and the principle of effectiveness.
AG Medina’s reasoning: legal certainty first
AG Medina declared the first of the three questions referred to the Court inadmissible. It concerned whether EU law distinguishes between the mere possibility of bringing a damages action and an obligation to do so once the injured party knows the relevant facts. However, CP had, in fact, already brought an action.
Nevertheless, AG Medina used the opportunity to offer clarification on a broader issue of systemic importance under EU law: Article 101 TFEU grants individuals a right to seek damages for infringements of competition rules, but it does not impose a duty to exercise that right at a particular moment. The timing of an action is left to the discretion of the injured party, although subject to compliance with national limitation rules. Those national rules, however, must comply with EU law, in particular, the principles of legal certainty and effectiveness. As such, they must be designed in a way that does not make it practically impossible or excessively difficult to exercise the rights conferred by EU competition law.
At the core of AG Medina’s reasoning lies a strong commitment to safeguarding injured parties from having to litigate prematurely. In paragraph 63 of her Opinion, she stresses that requiring a claimant to bring an action while the infringement decision is still being reviewed would place them in a procedurally uncertain position. The AG notes, in footnote 38, that this would lead to an “absurd” situation in which the injured party would be expected to rely on a decision whose addressee is still disputing its legality. That example brings her otherwise abstract reasoning into sharp focus and illustrates the practical risk of compelling parties to act before the legal situation is sufficiently clear.
This concern is reflected in the Spanish Supreme Court’s jurisprudence, to which AG Medina refers in paragraph 65. The Spanish Supreme Court has developed the concept of “full aptitude to litigate,” recognising that claimants can only be expected to act once the administrative decision they rely upon has reached a level of legal certainty that supports judicial action. AG Medina draws a parallel to this reasoning in her Opinion, using it to support the idea that the dies a quo should not be triggered while the legal status of the infringement remains subject to change.
AG Medina supports her reasoning with empirical evidence: approximately 60% of the CNMC’s decisions adopted in 2015 were subsequently annulled by the review courts (footnote 46 to para. 72). Such a high annulment rate underscores the real and significant legal uncertainty claimants face if forced to act prematurely. As AG Medina argues, follow-on actions must be grounded in decisions that can be relied upon in court, both factually and legally.
In her own words: “for the purposes of follow-on actions, the injured party has the right to bring an action, not on the basis of any official document that contains the relevant information, but only where the injured party can rely on a decision that is capable of producing specific legal effects. It is only at that point that the dies a quo of the limitation period should be established” (para. 67).
This includes not only the legal determination of the infringement itself but also the definition of its scope, duration and the identity of the parties involved. Each of these components may still be revised as long as the decision remains under judicial review. As such, setting the dies a quo based on a decision that has not yet acquired legal authority before national courts would require claimants to proceed amid instability, with a tangible risk of failed litigation.
Expecting injured parties to act before the review process has been concluded, and before there is legal certainty regarding the existence of the infringement, undermines the very objectives of private enforcement. It also imposes an unfair burden on claimants, who may face unnecessary financial and reputational risks by initiating claims based on an unresolved legal basis.
What about publication?
One of the central issues raised by the referring court was whether the publication of a full infringement decision by a national competition authority, specifically, the CNMC, on its website could be treated as equivalent to the publication of a summary of a European Commission (EC) decision in the Official Journal of the European Union for the purpose of triggering the limitation period. AG Medina unequivocally rejected this analogy.
While EC decisions benefit from a presumption of legality and are binding on national courts even before becoming final, this is not the case with decisions of NCAs under Spanish law. Unlike EC decisions, CNMC decisions do not produce binding legal effects for civil courts upon publication, especially when subject to judicial review. For instance, while CNMC decisions are immediately enforceable even if appealed, their enforceability may be suspended if the infringer not only expresses the intention to appeal but also duly requests interim suspension with the statement of claim.
AG Medina pointed out that publication on the CNMC’s website does not satisfy the criteria of legal certainty or procedural reliability required to initiate a follow-on damages claim. She stressed that the CNMC’s website does not function as an official legal publication medium, unlike the EU’s Official Journal. While the website has a role in transparency, it lacks the formal legal character necessary to confer enforceable effects. As she clearly stated: “The CNMC website is not an official government gazette akin to the Official Journal…” (para. 93).
In paragraph 90 of her Opinion, AG Medina directly addresses the relevance of the CJEU’s previous judgment in Heureka. She expressly distances the present case from a mechanical application of that precedent: “I would invite the Court, in the present case, to adopt an approach which is inspired by the spirit of the judgment in Heureka, but – contrary to the Commission’s approach – not one that would simply ‘copy and paste’ that approach in the present case.” The AG highlights the contextual and legal differences between the two scenarios and calls for a more nuanced application of the Heureka reasoning, tailored to the specific features of national decisions that do not have the same immediate legal effects as Commission decisions.
Moreover, AG Medina observed that under Spanish law, legal effects for the undertakings concerned arise not from online publication but from the individual notifications of the decision within the administrative sanctioning process. For third parties, such as injured consumers, publication serves no legal purpose beyond transparency. It does not amount to a formal communication capable of triggering the dies a quo.
This distinction is crucial because the legal consequences of each type of publication differ markedly. Once published in the Official Journal, EC decisions carry binding legal effect and are presumed lawful. In contrast, NCA decisions, even when published in full, do not possess the same authority unless they have passed through judicial review.
AG Medina emphasised that the difference between these publication mechanisms is not merely formal. Rather, it reflects substantive disparities in the legal effects attached to the decisions. While the EC operates with a supranational binding authority, NCAs act within national legal frameworks where procedural and publication rules vary significantly.
To treat both forms of publication as equivalent for calculating limitation periods, she argues, would erode important safeguards established under EU law, particularly in the sensitive context of follow-on litigation, where the stability and reliability of the infringement decision are essential.
By rejecting this false equivalence, AG Medina reinforces the idea that effective private enforcement depends not merely on access to information but on the legal weight and reliability of that information. Her Opinion reaffirms that publication must be more than a formality. It must mark the moment when claimants can rely on a decision with clear legal consequences.
Implications for follow-on claims
In my view, if the Court of Justice of the European Union endorses AG Medina’s proposed interpretation, the implications for private enforcement across the EU could be significant. National courts may be required to interpret domestic limitation rules in a way that ensures the dies a quo does not begin to run until the judicial review of the infringement decision has been concluded. In practical terms, this means that claimants could not be expected to initiate proceedings until the existence of the infringement is legally established through the completion of all relevant appeals.
This approach provides legal clarity and predictability for all parties involved. For injured parties, it addresses the structural imbalance often present in competition litigation, where defendants typically possess greater resources, procedural tools, and legal expertise. Knowing that the limitation clock only starts once there is certainty regarding the infringement allows these parties to assess their claims with greater confidence and build their case on stable legal ground.
From a systemic perspective, AG Medina’s reasoning reinforces the principle of effectiveness. If limitation periods were permitted to run while the underlying infringement decision remained under review, injured parties might face insurmountable barriers to exercising their rights, especially if judicial proceedings last several years. In such cases, claims could become time-barred before the legal conditions for action were even met, rendering the right to compensation illusory.
Her approach also promotes judicial economy and procedural efficiency. It avoids unnecessary satellite litigation on the admissibility of claims and shields courts from having to deal with follow-on actions grounded in contested or evolving findings. Moreover, it respects the principle of legal certainty not only for claimants but also for defendants, who benefit from clear procedural benchmarks and consistent treatment across Member States.
By ensuring that the dies a quo coincides with the moment the infringement decision can actually be relied upon in court, AG Medina’s Opinion aligns the start of the limitation period with the moment the legal foundation of the claim becomes stable and enforceable. This interpretation strikes a balance between timely access to justice and the integrity of judicial review processes, reinforcing the effectiveness of private enforcement as a complement to public action.
Finally, the approach outlined by AG Medina supports a more harmonised and coherent understanding of limitation periods across the EU. By clarifying that such periods should not begin before the legal basis of a damages claim can be effectively relied upon in court, her Opinion reduces the risk of premature time-bars and legal fragmentation. It strikes a balance between national procedural autonomy and the imperative to ensure the effective exercise of rights conferred by EU competition law.
Outlook: a potential turning point
AG Medina’s Opinion provides a principled and practical response to a core procedural issue in EU competition law. By proposing that the limitation period cannot begin until judicial review of the infringement decision has been completed, she reinforces a framework that protects the rights of claimants and promotes clarity and fairness in the enforcement of competition rules.
Her reasoning ensures that claimants are not forced to litigate while key legal elements remain unsettled. Instead, they may rely on decisions that are capable of producing legal effects before national courts, an interpretation that upholds the principles of effectiveness and legal certainty.
If the Court of Justice follows this line of reasoning, it could significantly improve the coherence and accessibility of private enforcement mechanisms across the EU, ensuring that the right to compensation becomes a practical reality rather than a theoretical entitlement.
By Amelia Mora González
