EECJ: private enforcement in aviation sector also a national court's game

Article
NL Law
EU Law

Recently, the ECJ ruled that national courts dealing with private enforcement cases are competent to apply EU competition law to historical behaviour in the aviation sector, regardless of public enforcement by the Commission and national competition authorities, and regardless of whether or not such authorities had authority to pursue public enforcement in the relevant period.

On 11 November 2021, the European Court of Justice (ECJ) ruled that national courts are competent to apply EU competition law in the aviation sector, even if during the relevant period the European Commission or national competition authorities lacked such competence.

The judgment concerns a preliminary ruling, following a referral by a Dutch civil court dealing with private damages claims relating to the airfreight cartel. In its 2017 cartel decision, the Commission established that a number of airlines had participated in airfreight surcharges price-fixing between 1999 and 2006. However, for the period until May 2004, the Commission did not establish an infringement on certain flight routes, including, among others, between EU airports and airports in third countries, because the Commission lacked authority to do so based on exemptions that excluded the aviation sector from EU competition law at the time.

In the civil cases before the Amsterdam District Court, two claim organizations brought claims covering all routes and the full period 1999-2006 (and beyond). Technically speaking, part of those claims are "follow-on" claims (following on the establishment of an infringement by the Commission) and part of those alleged claims are considered "stand-alone" claims (in which the claimants cannot benefit from or rely on an existing infringement decision).

In the civil proceedings, the airlines argued that for the "stand-alone" part of the claim (i.e. the pre-2004 routes between EU airports and airports in third countries), the Amsterdam District Court cannot establish an infringement of competition law because the Commission did not establish and could not have established an infringement at the time. In a 2019 interim judgment, the Amsterdam District Court indicated that it intended to reject the airlines' argument, but noted that an English court, addressed with the same question, had reached the opposite conclusion. The Amsterdam District Court therefore decided to request clarification from the ECJ.

The ECJ affirmed the Amsterdam District Court's ruling, confirming that national courts have a duty to apply and enforce EU competition law in civil law cases, even when the public authority was barred from doing so.

For that reason, it will now be up to the Amsterdam District Court to establish whether the airlines participated in a surcharge price-fixing cartel between 1999 and May 2004 on routes between EU airports and airports in third countries. It will be up to the claimants to allege and substantiate the required facts for these (stand-alone) claims.

This article was published in the Competition Newsletter of December 2021. Other articles in this newsletter: