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Belgian Constitutional Court rules that actions for antitrust damages cannot be time-barred before the final infringement decision is rendered

Belgian Constitutional Court rules that actions for antitrust damages cannot be time-barred before the final infringement decision is rendered

Belgian Constitutional Court rules that actions for antitrust damages cannot be time-barred before the final infringement decision is rendered

04.04.2016 NL law

On 10 March 2016, the Belgian Constitutional Court ruled that the 5-year statute of limitations for civil damage claims under Article 2262bis Belgian Civil Code ("BCC") violates the principle of equal treatment if the right to bring a civil action for damages becomes time-barred before the administrative decision establishing the existence of a competition law infringement becomes final. Consequently, the civil damage claim should not be time-barred as long as the decision of the competition authority remains subject to an appeal.

In the case at hand, the claimants had brought a civil action for damages in 2006 to obtain compensation for the damage suffered as a result of a competition law infringement committed by the defendant Honda Motor Europe Logistics ("Honda"). In 1999 the Belgian Competition Council  decided that Honda had abused its dominant position, but this decision only became definitive in 2011 after being upheld by the Belgian Supreme Court.

In the civil proceedings, Honda had argued that the claims were time-barred. In accordance with Article 2262bis of the BCC,  claims based on tort must be initiated within five years from the day following that on which the injured person becomes aware of the loss or the aggravation thereof and of the identity of the person responsible. This means that an injured party can be obliged to file a damage claim before a final decision establishing an antitrust violation is reached to prevent his claims from becoming time-barred. By contrast, the limitation period for civil actions arising from a criminal offence does not elapse as long as the criminal prosecution is not time-barred.

The Constitutional Court held that this provision conflicted with the Belgian Constitution since it made it more difficult for a person suffering a harm as a result of competition law to exercise his right to compensation. It referred to the fact that it is for the injured party to prove the existence of an unlawful practice. If Article 2262bis BCC were to be interpreted in a way that the limitation period of five years could expire before the establishment of the antitrust infringement, the injured party would not be able to rely on a final decision about the infringing nature of the practice in order to alleviate its burden of proof. Such an interpretation would disproportionally affect the rights of the injured party.

The Court also referred to Directive 2014/104/EU, which states that any person who suffers damages resulting from a violation of competition law has a right to compensation that should not be hindered by the fact that the limitation period to claim damages could expire before a final decision putting the infringement to an end.

This article was published in the Competition Law Newsletter of April 2016. Other articles in this newsletter:

1. Court of Justice annulled Commission's requests for information in cement cartel case
2.
Initial findings of Commission's e-commerce sector inquiry show widespread use of geo-blocking
3.
ACM fined cold-storage companies and their executives EUR 12.5 million for breaching competition law during merger negotiations
4.
Dutch Trade and Industry Appeals Tribunal confirmed that ACM can use EU-wide turnover in calculating the fines in onion cartel case
5.
New Leniency Guidelines applicable in Belgium since 22 March 2016

Team

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