European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The Commission, which acts on behalf of the EU interest, has no  competence to indemnify the victims of anticompetitive practices. Where a  victim of anticompetitive practices wishes to seek compensation for the  harm suffered he/she will have to refer the matter to the national  courts. Any person is entitled to claim compensation for the harm caused by a contract or conduct liable to restrict or …

Damages

The Commission, which acts on behalf of the EU interest, has no  competence to indemnify the victims of anticompetitive practices. Where a  victim of anticompetitive practices wishes to seek compensation for the  harm suffered he/she will have to refer the matter to the national  courts. Any person is entitled to claim compensation for the harm caused by a contract or conduct liable to restrict or distort competition where there is a causal link between the harm and the infringing practice , provided that it did not take a significant part in the distortion of competition . Claims by indirect victims of anticompetitive agreements are also admissible: persons who are not active suppliers or buyers on the market concerned by a cartel may bring an action for damages for losses they suffered as a result of the fact that, because of the cartel, the subsidies they provided were higher than they would have been without it and consequently they were unable to make more profitable investments with the difference . Thus, a victim of umbrella pricing is entitled to compensation for the loss caused by the members of a cartel even if it did not have contractual links with them . The Commission may itself bring an action for damages before the national courts on behalf of EU bodies which are the victims of a price fixing agreement established by the Commission. In effect, the fact that the national courts must comply with Commission's decisions does not violate Article 47 of the Charter of Fundamental Rights insofar as those decisions are subject to review by the EU courts and the national courts remain fully competent to assess the existence of loss and of a causal link between that loss and the agreement or practice in question . Where the entity responsible for the infringement has been dissolved, the undertaking which acquires all its shares continues its commercial activities is liable for the harm caused by the cartel . In addition, the victim may bring an action either against the parent company sanctioned by the Commission, or against a subsidiary not targeted by the decision, provided that together they constitute an economic unit, particularly in view of the concrete link between the economic activity of the latter and the object of the infringement for which the former has been held liable . On the other hand, service of the document instituting the proceedings by which a parent company is summoned to appear in an action for damages caused by an infringement of competition law cannot be effected at the address of its subsidiary domiciled in the Member State where the action was brought, even if both form an economic unit .

In its Green Paper of 19 December 2005 on damages actions for breach of the EC antitrust rules , the Commission highlighted that one of the main obstacles to the development of private enforcement resides in the difficulty of obtaining access to documents in proceedings. Thus where a leniency procedure is implemented, the Commission clearly shows its preference for public enforcement over private enforcement by refusing to disclose documents submitted by the beneficiaries of immunity . The Court of Justice has adopted a different position by requiring national courts, hearing an application for the disclosure of documents relating to the leniency application, to weigh up the interests protected by European Union law, the effectiveness of the compensation and that of the leniency programs . In application of those principles, the Court considers that a national law cannot make access to documents by third parties wishing to bring an action for damages relating to national proceedings concerning the application of Article 101 TFEU subject to the consent of all the parties and this includes access to documents made available under a leniency program . However, although Directive No 2014/104 on antitrust damages actions  advocates extensive access to documents in the file for victims of anticompetitive practices, it expressly rules out evidence submitted by leniency applicants or the beneficiaries of settlement procedures . Outside the framework of the leniency procedure, Article 6 of the directive allows complainants to make requests to the courts to order their holders to produce a certain amount of evidence, subject to certain safeguards. In particular, with regard to information prepared by a natural or legal person expressly for the purposes of proceedings brought by a competition authority, information drawn up by the competition authority and sent to the parties in the course of the proceedings, and settlement proposals which have been withdrawn, national courts may only order their production once a competition authority has, by adopting a decision or in some other way, closed its proceedings . The Court of Justice has held that this rule does not prevent a national court from ordering the production of evidence necessary to deal with a claim for compensation for competitive harm, even if proceedings for the adoption of a decision concerning the infringement complained of, pending before the Commission, has led that court to suspend the proceedings pending before it, on condition that such evidence is placed in escrow until the question of whether it contains “information prepared by a natural or legal person expressly for the purposes of proceedings brought by a competition authority”  has been examined. Article 5 of the Directive also allows national courts to order the defendant or a third party, at the request of the victim of the practices, to produce relevant evidence in their possession. According to the European Court of Justice, such a request need not be limited to documents that already exist, but may require the defendant to create them ex novo, by aggregating or classifying information, knowledge or data in its possession .

The question also arose before the Court of Justice  as to which court should have jurisdiction to hear actions for damages brought by the same claimant against several companies established in different Member States for their participation in a single, ongoing cartel . The Court found that such actions are so closely connected that it is expedient to hear and determine those applications together to avoid the risk of irreconcilable judgments. The victim may thus choose to bring an action before the court of the place where any one of the participants is domiciled even if this then leads to an out-of-court settlement and the withdrawal of the action against that participant but not the others. It may also bring the case before the courts of the place in which the cartel was concluded or before the courts of the place where its own registered office is located. Finally, the action may be brought in the place where the harmful event occurred whether that be the place where the market prices are distorted by a cartel   or  the place where predatory prices are offered or applied . On the other hand, this place cannot be that of the registered office of the parent company bringing an action for damages suffered exclusively by its subsidiaries as a result of the anticompetitive conduct of a third party, constituting an infringement of Article 101 TFEU, even if it is alleged that this parent company and these subsidiaries form part of the same economic unit . The action which seeks to put an end to certain conduct implemented in the context of a contractual relationship, based on an allegation of abuse of a dominant position committed by one of the parties, is a tort within the meaning of the recast Brussels I Regulation . Where applicable, the court may be bound by a jurisdiction clause in a contract on condition that the clause refers to disputes arising in relation to liability incurred in the event of a infringement of competition law and that the victim has consented to it . That condition is not required in the case of abuse of a dominant position, because unlike unlawful cartels the victims of which cannot foresee that their contracting partner is likely to have coordinated with third parties, the abuse can arise from the contractual relations with the dominant undertaking, so that the application of the clause necessarily arises from the legal relationship in connection with which the agreement was entered into .             

Under Article 16 of Regulation No 1/2003, when national courts rule on agreements, decisions or practices covered by Article 101 or 102 TFEU which are already the subject of a Commission decision, they may not take decisions which would run counter to the decision adopted by the Commission. In the case of a follow-on action, they can therefore rely on the Commission's finding of fault, as provided for in Article 9 of Directive No 2014/104 concerning the decisions of the national competition authorities of other Member States. What happens if the Commission's decision does not expressly refer to a product range? According to the Court of Justice, such a range may be considered to be covered by the decision where, in defining the market, the Commission did not distinguish between the products in question on the basis of their range, but on the basis of their weight .

Article 17(1) of Directive No 2014/104 empowers national courts to estimate the amount of damage, if it is established that a claimant has suffered damage, but that it is practically impossible or excessively difficult to quantify this precisely on the basis of the evidence available, if necessary with the help of the national competition authority. However, the Court of Justice reserves this option for only the most complex cases . It requires that it be practically impossible or excessively difficult to quantify the damage, in particular where there are particularly significant difficulties in interpreting the documents produced as to the extent to which the extra cost resulting from the cartel was passed on to the prices of products purchased by the plaintiff from one of the cartelists . The Court also clarified that these provisions, which are procedural in nature, can be applied to an action for damages which, although relating to an infringement of competition law that ended before the directive entered into force, was brought after 26 December 2014 and after the entry into force of the provisions transposing it into national law . On the other hand, it classified the provisions of Article 17(2), which establish a rebuttable presumption that infringements committed in the context of a cartel cause damage, as substantive provisions that cannot apply to an action for damages, which, although brought after the entry into force of the provisions belatedly transposing the directive into national law, relates to an infringement of competition law that ended before the date on which the deadline for transposing the directive expired .

Under Article 10(2) of the directive, the limitation period for an action may not begin to run until the infringement of competition law has ceased and the claimant has become aware, or may reasonably be deemed to have become aware, of the conduct and of the fact that it constitutes an infringement of competition law, of the fact that the infringement of competition law has caused him damage, and of the identity of the infringer. According to the Court of Justice, the requirement that the limitation period not begin to run before the infringement in question has come to an end is necessary to enable the injured party to identify and prove its existence, scope and duration, the extent of the damage caused by the infringement and the causal link between that damage and that infringement, and thus to be able to effectively exercise his right to claim full compensation under Articles 101 and 102 TFEU . Consequently, a statute of limitations which provides for a period whose starting point precedes the end of a single and continuous infringement and which cannot be suspended or interrupted in the course of the Commission's investigation, may have the consequence that this period expires well before the adoption of a Commission decision, directly affects the possibility for the injured party to bring a follow-on action and is therefore likely to make the exercise of his right to claim full compensation excessively difficult . In principle, according to the European Court of Justice, the time at which the injured undertaking has full knowledge of the information essential to the exercise of its right of action coincides with the date of publication of the summary of the Commission's decision in the Official Journal, similarly if this decision is not final because it has been appealed . While it cannot be ruled out that such a person may have become aware of the elements essential for bringing his action well before the publication in the Official Journal of the summary of the Commission's decision, it is for the defendant in the action to demonstrate that this is the case .

Article 3 of the Directive enshrines the right of victims to full compensation. This compensation must include not only the actual damage, but also loss of earnings and interest . On the other hand, it does not extend to the apportionment of costs, since the purpose of such apportionment is not to compensate for damage, but to determine how costs incurred in bringing an action for damages are to be shared .                        

Case C-295/04 Manfredi [2006] ECR I-6619, LawLex200600002419JBJ.

Case C-453/99 Courage and Crehan [2001] ECR I-6297, LawLex200500004898JBJ.

Case C-360-09 Pfleiderer AG, 14 June 2011, LawLex201200000058JBJ.

Case C-536-11 Donau Chemie AG, Judgment of 6 June 2013, LawLex201300001049JBJ.

Directive No 2014/104 of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition laws of the Member States and of the European Union.

Case C-57/21 RegioJet a.s., Judgment of 12 January 2023, LawLex202300002127JBJ.

Case C-163/21, Judgment of 10 November 2022, LawLex202300002243JBJ.

Case C-352-13 Cartel Damage Claims (CDC) Hydrogen Peroxide (SA) c. Akzo Nobel NV, Judgment of 21 May 2015, LawLex201500000644JBJ.

Case C-451-18 Tibor-Trans, Judgment of 29 July 2019, LawLex201900000991JBJ.

Case C-30/20 AB Volvo, Judgment of 15 July 2021, LawLex202100004617JBJ.

Case C-435/18 Otis GmbH, Judgment of 12 December 2019, LawLex201900001525JBJ. 

Case C-27/17 AB flyLAL-Lithuanian Airlines, Judgment of 5 July 2018, LawLex201800001095JBJ.

Case C-425/22 Mercedes-Benz Group AG, Judgment of 4 July 2024, LawLex202400009312JBJ.

Case C-59/19 Booking.com BV, Judgment of 24 November 2020,LawLex202100000024JBJ .

Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide (SA), Judgment of 21 May 2015, LawLex201500000644JBJ.

Case C-595-17 Apple Sales International c. eBizcuss.com, Judgment of 24 October 2018, LawLex201800001586JBJ.

Case C-588/20 Daimler AG, Judgment of 1 August 2022, LawLex202200006667JBJ.

Case C-312/21 Tráficos Manuel Ferrer SL et Ignacio, Judgment of 16 February 2023, LawLex202300002327JBJ, holding that the mere existence of uncertainties, inherent to liability litigation, which result from the confrontation of arguments and expert opinions in the context of adversarial debate, does not correspond to the degree of complexity in the assessment of the loss required to allow application of the judicial estimate provided for in Article 17(1) of Directive No 2014/104.

Case C-267/20 Volvo AB, Judgment of 22 June 2022, LawLex202300002469JBJ.

Case  C-557/12 Kone AG, Judgment of 5 June 2014, LawLex201400002051JBJ: umbrella pricing exists where a cartel has made it possible to maintain a market price at such a high level that even competitors not party to the cartel were able to benefit from a market price that was higher than it would otherwise have been but for the existence of that cartel, whether in terms of profit margin, or simply of survival, if their cost structure was such that normal conditions of competition resulted in their removal from the market.

Case C-605/21 Heureka Group a.s. c/ Google LLC, Judgment of 18 avril 2024, LawLex202400009313JBJ.

Case C-295-04 Vincenzo Manfredi, Judgment of 13 July 2006, LawLex200600002419JBJ.

Case C-312/21 Tráficos Manuel Ferrer SL et Ignacio, Judgment of 16 February 2023, LawLex202300002327JBJ, cited above.

Case C-199/11 Otis and others [2012], LawLex201200002286JBJ.

Case C-724/17 Vantaan kaupunki v Skanska Industrial Solutions Oy, Judgment of 14 March 2019, LawLex201900000328JBJ.

Case C-882/19 Sumal SL, Judgment of 6 October 2021, LawLex202100005498JBJ.

Case C-632/22 Volvo AB, Judgment of 11 July 2024, LawLex202400009311JBJ.

See sanctioning the Commission's refusal, Case T-437-08 CDC Hydrogene Peroxide Cartel Damage Claims, Judgment of 15 December 2011, LawLex201200000087JBJ; Case T-344-08 EnBW Energie Baden-Württemberg AG, Judgment of 22 May 2012, LawLex201200000957JBJ. Comp, validating the refusal in the name of confidentiality protection, Case T-380-08 Netherlands, Judgment of 13 September 2013, LawLex201700000986JBJ.

European Competition Law

284. Damages

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

284. Damages

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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