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

03.10.2019 NL law
It's in the details: HSBC fine quashed for insufficient reasoning

Short Reads - The General Court annulled the EUR 33.6 million fine imposed on banking group HSBC for its participation in the euro interest rates derivatives cartel. Full annulment was granted based on the Commission's failure to provide sufficiently detailed reasoning for the first step of the fine calculation, establishing the value of sales. As the value of sales could not be established in a straightforward way, the Commission used a proxy. When doing so, the Commission needs to properly explain its reasoning to allow the companies fined to understand how it arrived at the proxy. 

Read more

03.10.2019 NL law
The postman will no longer ring twice: Minister unblocks postal merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently blocked postal operator PostNL's acquisition of its only national competitor, Sandd, because this would create "a monopolist on the postal delivery market". However, the Dutch Minister of Economic Affairs and Climate Policy has overruled the ACM's decision on grounds of public interest. Invoking industrial policy or public interest reasons for merger clearance seems to be catching on.

Read more

03.10.2019 NL law
The ACM has to pay: moral damages awarded to real estate traders

Short Reads - The Dutch Authority for Consumers and Markets (ACM) needs to cough up a total of EUR 120,000 in moral damages to three real estate traders. The Dutch Trade and Industry Appeal Tribunal (CBb) agreed with the real estate traders that the annulment of the ACM's cartel decisions against them was insufficient compensation for the harm they suffered as a result of the length of the procedure and the press coverage of their cases.

Read more

02.10.2019 NL law
Politie aansprakelijk voor schietpartij Alphen aan den Rijn

Short Reads - De politie is aansprakelijk voor de schietpartij in een winkelcentrum Alphen aan den Rijn in 2011. Dat oordeelt de Hoge Raad in zijn arrest van 20 september 2019 (ECLI:NL:HR:2019:1409). Bij deze schietpartij vonden zes mensen de dood en raakten zestien mensen gewond. De dader doodde ook zichzelf. Nabestaanden van dodelijke slachtoffers, slachtoffers die gewond raakten en winkeliers spreken de politie aan tot schadevergoeding. Zij voeren aan dat de politie de vergunning voor de wapens die de man gebruikte, niet had mogen verlenen.

Read more

03.10.2019 NL law
Margrethe Vestager to play matchmaker between enforcement and regulation

Short Reads - Current Competition Commissioner Margrethe Vestager may face even greater challenges in the next European Commission. President-elect Ursula von der Leyen has not only nominated Vestager for a second term as Commissioner for Competition, but has also asked her to coordinate the European Commission's digital agenda. As a result, Vestager may soon be tackling digital issues through competition enforcement whilst also proposing additional regulation to deal with these (and related) issues pre-emptively.

Read more

02.10.2019 NL law
Dutch national police service liable for unlawful granting of firearms permit

Short Reads - In a recent decision (ECLI:NL:HR:2019:1409), the Supreme Court has decided that the Dutch national police force is liable for damage suffered by victims of a shooting which took place in a shopping centre in 2011; an event that shocked the Netherlands. The Supreme Court held that the police had unlawfully granted a permit for the firearms used in the shooting.

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