Short Reads

EFTA Court offers guidance for assessing national limitation periods for follow-on damages claims

EFTA Court offers guidance for assessing national limitation periods

EFTA Court offers guidance for assessing national limitation periods for follow-on damages claims

01.10.2018 EU law

On 17 September 2018, the Court of Justice of the European Free Trade Association (EFTA Court) ruled that national limitation periods should not make damages claims impossible or excessively difficult.

The judgment was delivered in the context of a Norwegian damages claim following an infringement decision issued by the EFTA Surveillance Authority (ESA) for a breach of articles 53 and 54 EEA (equivalents of articles 101 and 102 TFEU). Under Norwegian law at the time, competition law damages claims were time-barred three years after the date when the injured party obtained or should have procured necessary knowledge about the damage and responsible party. In these proceedings, the defendant argued that the damages claim was time-barred, in light of the fact that the claimant itself had filed the initial complaint with the competent competition authority seven years before. The national court referred several questions to the EFTA Court, asking, among other things, whether a limitation period of three years for bringing follow-on damages claims combined with a duty of investigation that could result in the term expiring before an infringement decision is taken by the competent authority, is compatible with the principle of effective application of EEA law.

First, the EFTA Court held that national limitation periods should not make it impossible or excessively difficult to bring follow-on damages claims for infringements of EEA competition rules. It then found that a period of three years combined with a duty of investigation on the part of the injured party does not, in principle, render the exercise of procedural rights impossible or excessively difficult, even if the term may expire before the ESA has reached a decision. The EFTA Court concluded that it is up to the national court to make the actual assessment. In that regard, the national court must consider: (i) the special characteristics of competition cases (e.g. large and complex cases), (ii) the aim of effective enforcement, (iii) the degree of information and evidence available to an injured party (including the potentially privileged position of parties submitting complaints to competition authorities) and (iv) the possibilities for suspension or interruption of the term under the relevant national law.

This judgment will help to guide national courts in the assessment of national limitation periods in cases where the Damages Directive (Directive 2014/104/EU), including its provisions concerning limitation periods, is not applicable, for instance in EEA countries (Iceland, Norway and Liechtenstein), or in cases that are outside the temporal scope of the Damages Directive.

This article was published in the Competition Law Newsletter of October 2018. Other articles in this newsletter:

1. Court of Justice refers case against Infineon in relation to smart card chips cartel back to the General Court
2. Dutch Trade and Industry Appeals Tribunal annuls mail market analysis decision
3. UK Court upholds fine against Ping for online sales ban

Related news

01.08.2019 NL law
General court dismisses all five appeals in the optical disk drives cartel

Short Reads - The General Court recently upheld a Commission decision finding that suppliers of optical disk drives colluded in bids for sales to Dell and HP by engaging in a network of parallel bilateral contacts over a multi-year period. The General Court rejected applicants' arguments regarding the Commission's fining methodology, including that the Commission ought to have provided reasons for not departing from the general methodology set out in its 2006 Guidelines.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

Read more

01.08.2019 NL law
Brand owners beware: Commission tough on cross-border sales restrictions

Short Reads - The European Commission recently imposed a EUR 6.2 million fine on Hello Kitty owner Sanrio for preventing its licensees from selling licensed merchandising products across the entire EEA. Sanrio is the second licensor (after Nike) to be fined for imposing territorial sales restrictions on its non-exclusive licensees for licensed merchandise. A third investigation into allegedly similar practices by Universal Studios is ongoing. The case confirms the Commission's determination to tackle these practices, regardless of type or form.

Read more

08.08.2019 BE law
Regulating online platforms: piece of the puzzle

Articles - The new Regulation no. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, applicable as of 12 July 2020, is another piece of the puzzle regulating online platforms, this time focussing on the supply side of the platforms.

Read more

01.08.2019 NL law
Call of duty: Commission must state reasons when straying from its guidelines

Short Reads - The European Commission has lost a second battle concerning its EUR 15 million fine imposed upon interdealer broker ICAP, this time before the European Court of Justice. The Court upheld the previous judgment of the General Court on the basis of the Commission's failure to state reasons concerning its fining methodology of cartel facilitator ICAP. This may lead to more reasoned Commission decisions in the future - deterrence of cartel behaviour does not justify keeping the methodology for setting the fines as a 'black box'.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring