OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 8 September 2022 (1)
Case C‑25/21
ZA,
AZ,
BX,
CV,
DU,
ET
v
Repsol Comercial de Productos Petrolíferos SA
(Request for a preliminary ruling
from the Juzgado de lo Mercantil de Madrid (Commercial Court, Madrid, Spain))
(Reference for a preliminary ruling – Competition – Private enforcement – Article 101(1) and (2) TFEU – Regulation (EC) No 1/2003 – Article 2 – Action for a declaration of nullity – Action for damages – Directive 2014/104/EC – Temporal application – Probative value of a decision of a national competition authority in an action for a declaration of nullity and an action for damages – Procedural autonomy of the Member States – Principles of effectiveness and legal certainty)
1. Evidential requirements play a fundamental role in the private enforcement of EU competition rules. Civil actions for infringement of competition law usually require a complex factual and economic analysis and are characterised by a very significant asymmetry of information. Those factors may compromise the ability of persons bringing civil actions effectively to exercise their rights.
2. In that context, the question of the probative value of decisions of the national competition authority before national civil courts called on to adjudicate actions for damages brought for infringement of competition law has now been dealt with in Article 9(1) of Directive 2014/104/EU on actions for damages for infringements of competition law provisions. (2) However, many questions remain unanswered.
3. Thus, in addition to questions relating to the interpretation of that provision, what is the probative value of such decisions in actions for a declaration of nullity based on Article 101(2) TFEU? Moreover, what is the nature of Article 9(1) of Directive 2014/104 which determines its applicability ratione temporis? If that provision is not applicable, what is the probative value of those decisions in the context of actions for damages for infringement of EU competition law?
4. In the present case, which concerns a reference for a preliminary ruling made by the Juzgado de lo Mercantil de Madrid (Commercial Court, Madrid, Spain), the referring court, the Court will have the opportunity to provide clarification on all those questions.
I. Legal context
A. European Union law
5. Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU], (3) entitled ‘Burden of proof’, provides:
‘In any national or Community proceedings for the application of Articles [101 and 102 TFEU], the burden of proving an infringement of Article [101](1) or of Article [102 TFEU] shall rest on the party or the authority alleging the infringement. …’
6. Recital 34 of Directive 2014/104 states:
‘Ensuring the effective and consistent application of Articles 101 and 102 TFEU by the Commission and the national competition authorities necessitates a common approach across the Union on the effect of national competition authorities’ final infringement decisions on subsequent actions for damages. … To enhance legal certainty, to avoid inconsistency in the application of Articles 101 and 102 TFEU, to increase the effectiveness and procedural efficiency of actions for damages and to foster the functioning of the internal market for undertakings and consumers, the finding of an infringement of Article 101 or 102 TFEU in a final decision by a national competition authority or a review court should not be relitigated in subsequent actions for damages. Therefore, such a finding should be deemed to be irrefutably established in actions for damages brought in the Member State of the national competition authority or review court relating to that infringement. The effect of the finding should, however, cover only the nature of the infringement and its material, personal, temporal and territorial scope as determined by the competition authority or review court in the exercise of its jurisdiction. …’
7. Article 9 of Directive 2014/104, entitled ‘Effect of national decisions’, provides in paragraphs 1 and 2:
‘1. Member States shall ensure that an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 TFEU or under national competition law.
2. Member States shall ensure that where a final decision referred to in paragraph 1 is taken in another Member State, that final decision may, in accordance with national law, be presented before their national courts as at least prima facie evidence that an infringement of competition law has occurred and, as appropriate, may be assessed along with any other evidence adduced by the parties.’
8. Article 22 of Directive 2014/104, entitled ‘Temporal application’, states:
‘1. Member States shall ensure that the national measures adopted pursuant to Article 21 in order to comply with substantive provisions of this Directive do not apply retroactively.
2. Member States shall ensure that any national measures adopted pursuant to Article 21, other than those referred to in paragraph 1, do not apply to actions for damages of which a national court was seized prior to 26 December 2014.’
B. Spanish law
9. Directive 2014/104 was transposed into Spanish law by the Real Decreto-ley 9/2017, por el que se transponen directivas de la Unión Europea en los ámbitos financiero, mercantil y sanitario, y sobre el desplazamiento de trabajadores (Royal Decree-Law 9/2017 transposing European Union directives in the fields of finance, commerce and health and on the posting of workers) (4) of 26 May 2017, which amended Ley 15/2007 de Defensa de la Competencia (Law 15/2007 on the protection of competition) of 3 July 2007. (5)
II. The facts in the main proceedings and the questions referred for a preliminary ruling
10. KN’s heirs are the owners of a petrol station built by KN and located in Spain. Repsol SA is the main Spanish undertaking active in the sector of the manufacture of energy products derived from refining crude oil. Between 1987 and 2009, KN or his heirs and Repsol concluded five contracts concerning the supply of fuel in connection with the operation of the service station.
11. The first two contracts were concluded in 1987 and 1996 respectively. It is apparent from the order for reference that, while all of them are classified as exclusive supply contracts, those contracts could in reality be regarded as resale contracts. (6) Those two contracts provided that the remuneration of the service-station operator consisted of a commission which that operator could charge on the sale price of the fuel to the public, that price being recommended by Repsol.
12. By a decision of 11 July 2001 (‘the 2001 decision’), the Tribunal de Defensa de la Competencia (Competition Court, Spain) found an infringement by Repsol of national competition rules and delivered the following decision:
‘1. Declare that [Repsol] has implemented a practice prohibited by Article 1(1) of the Ley de Defensa de la Competencia [(Law on the protection of competition)] by fixing the retail prices of fuel for distributors acting with it under an assumed commission or agency scheme, under the contracts referred to … in the service file.
2. Order [Repsol] to cease fixing prices in the context of relations with service stations with which it is bound by a contract with similar characteristics.’
13. That decision was upheld by the Audiencia Nacional (National High Court, Spain) (7) and, subsequently, by the Tribunal Supremo (Supreme Court, Spain), (8) thus becoming final.
14. On 22 February 2001, 22 February 2006 and 17 July 2009, KN or his heirs and Repsol entered into three subsequent contracts, described as ‘exclusive commission contracts’. Those three contracts contained an exclusive supply obligation in favour of Repsol for five, three and five years respectively. It is clear from the order for reference that the economic regime was that of an ‘assumed’ commission, which in reality concealed a resale contract, since it was the agent who assumed the risk relating to the product and had to pay the amount of the products ordered (the retail price fixed by Repsol minus the commission) sufficiently in advance to enable Repsol to verify payment before delivery.
15. It is apparent from the abovementioned order for reference that, in those three contracts, the agent’s option to apply discounts to customers by offsetting them against his commission was formally recognised. However, that option was, in practice, purely theoretical.
16. Following an investigation which confirmed that Repsol continued to infringe the competition rules, since the option given to the operators of the service stations in its network to apply discounts against their commission had proved not to be genuine, the Comisión Nacional de la Competencia (National Competition Commission; ‘the CNC’), (9) by decision of 30 July 2009 (‘the 2009 decision’), resolved to sanction, inter alia, Repsol for those infringements of the competition rules. The operative part of the 2009 decision stated:
‘FIRST. – Declare that Repsol … infringed Article 1 of the [Law on the protection of competition] and Article [101(1) TFEU] by having indirectly fixed the retail price charged by independent business owners operating under their brand name, restricting competition between the service stations in their network and between other service stations.
SECONDLY. – Declare that all contracts including clauses under which the principal transfers significant commercial or financial risks to the other party to the contract will be treated, for the purposes of the application of competition law, as resale contracts.
THIRDLY. – Declare that any other contractual clause in Repsol’s fuel supply contracts providing that the purchase price of fuel is fixed by reference to the maximum or recommended price, whether that of the service station itself or that of competitors in the region, is contrary to Article 1 of the [Law on the protection of competition] and Article [101(1) TFEU] …
FOURTHLY. – Declare that any other contractual clause in Repsol’s fuel supply contracts … providing that the commissions/margins to be collected are set at levels similar to those of the region where the service station which is the subject of the contract is situated is contrary to Article 1 of the [Law on the protection of competition] and Article [101(1) TFEU] …
FIFTHLY. – Order Repsol … to take, from the date of notification of the present decision, the measures necessary to put an end to all practices contributing to the indirect fixing of the price of fuels sold in the service stations of the networks covered by a contract under the Repsol brand name … whose managers are independent business owners for the purposes of applying the competition rules …’
17. The 2009 decision was confirmed by the Spanish courts (10) and thus became final.
18. In the context of the supervisory procedure, the CNMC delivered three decisions (11) in which it found that Repsol had continued its unlawful practice until 2019.
19. In those circumstances, KN’s heirs brought an action before the referring court seeking a declaration of nullity in respect of the contracts existing between the parties, pursuant to Article 101(2) TFEU, on account of the fixing by Repsol of the retail price for motor‑vehicle and other fuels, in breach of Article 101(1) TFEU, and a claim for compensation for harm caused as a result of the infringement of Article 101 TFEU. As evidence of unlawful practice, KN’s heirs produced the two decisions of the Spanish competition authorities (namely the 2001 decision and the 2009 decision) which have become final.
20. The referring court notes that, under Article 2 of Regulation No 1/2003, the burden of proof of an infringement of Article 101 TFEU is to rest on the party alleging the infringement. It also refers to the principle of effectiveness and classifies the action brought by KN’s heirs as an action for a declaration of nullity in respect of the existing contracts between the parties with a claim for compensation for damages (a ‘stand-alone action’).
21. Next, it notes that the national case-law (12) confers no probative force on decisions of a competition authority in the context of an action for a declaration of nullity such as that brought by KN’s heirs. In its view, it is apparent from that case-law that the measures taken by the Spanish competition authorities, including those confirmed by the competent courts, should not lead to the annulment of all contracts under a brand name concluded by oil companies. It states that those decisions do not even constitute evidence of the unlawful practice for a civil court. Consequently, in order to obtain a declaration of the nullity of the contracts at issue, an applicant would have to reproduce before that court the evidence submitted in the administrative file.
22. The referring court also notes that, in the context of a ‘follow-on’ action, an applicant may now, in accordance with Article 9 of Directive 2014/104, satisfy the burden of proof relating to an unlawful practice simply by showing that the final decisions of a competition authority concern the contractual relationship at issue. In the present case, however, KN’s heirs are not only bringing an action for damages, but are also claiming that the contracts at issue are null and void under Article 101(2) TFEU. Nevertheless, in the view of the referring court, to deny any evidential value to the 2001 decision and the 2009 decision would result in the continuation of contracts prohibited by Article 101 TFEU and the absence of compensation for the harm caused by the prohibited practice to the persons concerned. That court states that that consequence is inconceivable, since the contracts between Repsol and KN’s heirs correspond to the sanctioned practices and to the contracts analysed by the competition authorities in those decisions and, in particular, were put in place during the same period as those contracts and in the same geographical market as those contracts.
23. In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) If the applicant establishes that its exclusive supply contract under a brand name (on a commission basis or an executed sale basis with a discounted reference resale price) with [Repsol] falls within the territorial and temporal scope examined by the national competition authority, must the contractual relationship be found to be covered by the [2001 decision] (case 490/00 REPSOL) and/or by the [2009 decision] (case 652/07 REPSOL/CEPSA/BP), the conditions laid down in Article 2 of Regulation (EC) No 1/2003 regarding the burden of proof of the infringement being deemed to be satisfied pursuant to those decisions?
(2) If the previous question is answered in the affirmative, and it is established in the specific case that the contractual relationship is covered by the [2001 decision] (case 490/00 REPSOL) and/or the [2009 decision] (case 652/07 REPSOL/CEPSA/BP), must the necessary consequence be a declaration that the agreement is automatically void in accordance with Article 101(2) TFEU?’
III. Analysis
24. The two questions referred for a preliminary ruling by the referring court in the present case seek to determine, in the light of EU law, the probative value to be attributed in the civil action brought before it to two final decisions of the Spanish competition authorities which found infringements of both national and EU competition law.
25. Before addressing the questions referred in detail, it is appropriate, in my view, to make some preliminary observations.
26. First, it seems appropriate to clarify certain aspects concerning the action brought by KN’s heirs before the referring court in the dispute in the main proceedings.
27. Secondly, the question of the effect of a final decision of a national competition authority for the purposes of an action for damages brought before its national court is now governed by Article 9(1) of Directive 2014/104, which was transposed into Spanish law by Article 75 of Law 15/2007 on the protection of competition, as amended by Royal Decree-Law 9/2017. It is therefore necessary, as a preliminary point, to ascertain whether that provision is applicable to the dispute in the main proceedings.
A. Preliminary observations
1. The action brought before the referring court
28. In the present case, in the 2001 and 2009 decisions, the Spanish competition authorities found that Repsol had infringed, for a period of several years, the prohibition on agreements restricting competition laid down by national and EU competition law by indirectly fixing the retail prices of fuel in relations with service stations with which it was connected. Those authorities found vertical restrictions of competition in the context of contractual relations between a producer and supplier of fuel, Repsol, and its distributors, namely service stations.
29. During the period covered by the two abovementioned decisions, KN and his heirs, the applicants before the referring court, concluded a number of contracts with Repsol for the exclusive supply of fuel for resale in their service station. Considering that they were affected by Repsol’s anticompetitive conduct, KN’s heirs brought a civil action before the referring court.
30. In that action, KN’s heirs ask that court, as separate consequences of the infringement of Article 101(1) TFEU, first, to declare the relevant contracts null and void in direct application of Article 101(2) TFEU and, secondly, to order Repsol to pay compensation for the damage caused by that infringement. (13)
31. In the order for reference, the referring court expressly classifies that action as a ‘stand-alone’ action. That court appears to derive that classification from the fact that the action for damages brought by KN’s heirs is coupled with an action for a declaration of nullity in respect of the existing contracts on the basis of Article 101(2) TFEU. That classification, which was discussed both in the observations submitted to the Court and at the hearing, warrants some clarification.
32. In competition law, and specifically in the context of private enforcement, a distinction is typically drawn between two types of civil actions for damages for infringements of competition law provisions, namely ‘stand-alone actions’ and ‘follow-on actions’.
33. While, in the context of the private enforcement of competition law, that distinction is often used in practice, (14) there is no precise legal definition in EU law of those two types of action. Thus, Directive 2014/104 does not expressly refer to that distinction or to the two types of action. The only references to the distinction between ‘stand-alone’ and ‘follow-on’ actions are to be found in the Commission’s preparatory documents relating to the adoption of that directive. (15)
34. It is clear from those documents and from the use of those concepts in practice that ‘stand-alone actions’ are civil actions, in particular actions for damages, (16) brought before a court without a prior decision having been adopted by a competition authority. By contrast, ‘follow-on actions’ are civil actions which follow a finding by a competition authority of an infringement of competition law.
35. It follows that the dichotomy between ‘follow-on’ and ‘stand-alone’ actions concerns a distinction between civil actions brought before the civil courts in order to obtain recognition of legal consequences in relations between private individuals arising from an infringement of competition rules – in particular, compensation for harm suffered as a result of such an infringement – depending on whether or not there has been a prior finding of the infringement in a decision of a competition authority. It is not, therefore, as the referring court and at least some of the Spanish case-law appears to imply, (17) a distinction between actions for a declaration of nullity on the one hand and actions for damages on the other.
36. In the present case, irrespective of the effect in concreto of the two decisions of the Spanish competition authorities in the civil action brought before the referring court, it is clear from the documents in the file that the civil action brought by KN’s heirs follows the findings made by the Spanish competition authorities in the two decisions of 2001 and 2009, from which it is apparent that Repsol infringed the prohibition on agreements restricting competition.
37. KN’s heirs even wish to rely on those findings in support of their action. Moreover, the questions referred for a preliminary ruling by the referring court concerning the probative value of the two decisions in the context of that civil action confirm that that action was brought following those two decisions. In those circumstances, I have doubts as to the referring court’s classification of the action for damages at issue as a ‘stand-alone’ action.
38. The fact that the action for damages is coupled with an action for a declaration of nullity in respect of the existing contracts between the parties under Article 101(2) TFEU does not alter that conclusion.
39. While those two actions are undoubtedly connected – in that they both relate to the same infringement of competition rules – they are separate actions, since they concern different legal consequences arising from that infringement and rest on different legal bases. The action for a declaration of nullity seeks a declaration that contracts concluded in breach of the competition rules under Article 101(2) TFEU are automatically void. The action for damages, on the other hand, seeks compensation for the harm suffered as a result of that infringement and is based on a right recognised by EU law, (18) implemented through the national rules on civil liability, whether contractual or non-contractual.
40. In that regard, it is not apparent from the order for reference whether KN’s heirs are basing their action for damages on Repsol’s contractual or non-contractual liability. (19) However, the classification of an action for damages, under national law, as contractual or non-contractual has no impact on the right to obtain compensation for the harm suffered as a result of an infringement of competition law. Neither the case-law, which has recognised the right to claim compensation for harm resulting from an infringement of the competition rules, (20) nor Directive 2014/104 (21) makes the exercise of such a right subject to the existence of a particular form of liability.
41. Thus, even if one were to accept the argument put forward at the hearing by Repsol’s representatives to the effect that, in the present case, the action for damages is subject to a declaration of nullity – which, in reality, does not seem to me to follow from a reading of the application brought before the referring court by KN’s heirs (22) – that would not alter the fact that the harm for which compensation is sought stems directly from the infringement of (EU) competition law and that the claim for damages is the exercise of an autonomous right recognised by EU law which is not dependent on a possible declaration of nullity of the contracts in question.
2. The applicability of Article 9(1) of Directive 2014/104
42. As I have already noted, the effect of a final decision of a national competition authority of a Member State for the purposes of an action for damages brought before a court of that Member State for infringement of provisions of competition law is now governed by Article 9(1) of Directive 2014/104.
43. Since the action brought by KN’s heirs before the referring court, first, was brought on 12 February 2018, namely after the transposition into Spanish law of Article 9(1) of Directive 2014/104 (23) and, secondly, includes such an action for damages, it is necessary, first of all, to determine whether that provision is applicable ratione materiae and ratione temporis to the present case.
(a) Applicability ratione materiae
44. As regards the applicability ratione materiae of Directive 2014/104 and, in particular, of Article 9(1) thereof to the present case, some of the parties who submitted observations to the Court have argued that that directive does not apply in the present case because it applies exclusively to actions for damages of the ‘follow-on’ type. While referring to the considerations set out in points 32 to 41 above concerning both the distinction between ‘stand-alone’ and ‘follow-on’ actions and the analysis of the action brought in the present case, I note that it is apparent from Article 1 of Directive 2014/104, entitled ‘Subject matter and scope’, in paragraph 2 thereof, that that directive determines, inter alia, the enforcement of the competition rules ‘in damages actions before national courts’, (24) without any reference to a distinction between ‘stand-alone’ and ‘follow-on’ actions. As I have pointed out, that directive does not even mention such a distinction. It follows that Directive 2014/104 applies to any type of action for damages for infringements of competition law provisions, irrespective of the classification of the action as a ‘follow-on’ or ‘stand-alone’ action.
45. Of course, in so far as Article 9(1) of Directive 2014/104 governs the effect of decisions of national competition authorities, that provision cannot apply if there is no such decision. However, first, that does not mean that the directive does not apply ratione materiae to actions of a ‘stand-alone’ type. Secondly, in the present case there are two decisions of the national competition authority and the questions referred for a preliminary ruling seek precisely to establish the effects and probative value of those decisions in the civil action before the referring court, including the action for damages.
46. Moreover, it should be noted that, as is apparent from Article 1 of Directive 2014/104, that directive applies exclusively to actions for damages, and does not by contrast apply to civil actions seeking a declaration that agreements contrary to Article 101(2) TFEU are void. Actions for a declaration of nullity of that kind are therefore not regulated at the level of EU secondary legislation.
(b) Applicability ratione temporis
47. As regards the application ratione temporis of Article 9(1) of Directive 2014/104, I note that in a recent judgment of 22 June 2022, Volvo and DAF Trucks (C‑267/20, EU:C:2022:494; ‘judgment in Volvo’), the Court provided clarification on the criteria for determining the applicability ratione temporis of that directive. What is more, it concerned a reference for a preliminary ruling from a Spanish court. (25)
48. In that context, the Court first recalled that Directive 2014/104 contains a special provision, namely Article 22 thereof, which explicitly states the conditions for the temporal application of its substantive and non-substantive provisions. (26)
49. In particular, first, under Article 22(1) of Directive 2014/104, Member States had to ensure that the national measures adopted pursuant to Article 21 thereof in order to comply with the substantive provisions of that directive do not apply retroactively. (27)
50. Secondly, under Article 22(2) of Directive 2014/104, Member States had to ensure that any national measures adopted in order to comply with the procedural provisions of that directive do not apply to actions for damages of which a national court was seised prior to 26 December 2014. (28)
51. It follows that, in order to determine the temporal applicability of Article 9(1) of Directive 2014/104, it is necessary to establish, in the first place, whether or not that provision constitutes a substantive provision. (29)
52. The Court also held that, once it has been determined whether the provision concerned is substantive or not, it is necessary to ascertain, in the second place, whether, in circumstances such as those at issue in the main proceedings, in which Directive 2014/104 was transposed late, the situation at issue, in so far as it cannot be described as new, arose before the expiry of the time limit for the transposition of that directive or whether it continued to produce effects after the expiry of that time limit. (30)
53. As regards directives, it is clear from the case-law that it is, as a general rule, on the one hand, only legal situations existing after the expiry of the time limit for the transposition of a directive or, on the other hand, legal situations which arose under the old rule and which continue to produce effects after the entry into force of the national measures taken to transpose a directive after the expiry of the time limit for its transposition, which may be brought within the scope ratione temporis of that directive. (31)
(1) Whether Article 9(1) of Directive 2014/104 is a substantive or procedural provision
54. Although Article 22 of Directive 2014/104 lays down different conditions for the application ratione temporis of its provisions according to whether procedural or substantive provisions are concerned, it does not define which of its provisions are to be regarded as substantive or procedural.
55. In general, substantive rules may be considered to determine the existence and extent of the liability of the persons involved in the competition law infringement, while procedural rules determine the conduct of a procedure. (32)
56. However, in the absence of any indications in Directive 2014/104, the Court, in its case-law, has carried out a precise analysis of the content and purpose of each provision of that directive where its applicability ratione temporis had been called into question in order to determine its substantive or procedural nature.
57. As regards Article 9(1) of Directive 2014/104, it should be recalled that it is apparent from the wording of that provision that Member States are to ensure that an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 TFEU or under national competition law.
58. As is apparent from recital 34 of Directive 2014/104, the purpose of that provision is to ensure legal certainty, to avoid any inconsistency in the application of Articles 101 and 102 TFEU, to increase the effectiveness and procedural efficiency of actions for damages and to foster the functioning of the internal market for undertakings and consumers.
59. In order to attain those objectives, that provision, in essence, confers on decisions finding an infringement of competition law which have become final, delivered by the national competition authorities or upheld by an appeal body, the force of irrefutable evidence of that finding for the purposes of an action for damages. From that point of view, it may be considered that Article 9(1) of Directive 2014/104 governs the probative value of qualified evidence, namely the decision of the national competition authority. Where there is coincidence (33) between the infringement found in the decision of the national authority and that which allegedly caused the harm for which compensation is sought in the civil action, that decision will prove irrefutably the infringement in the context of that action.
60. However, although it follows from the preceding point of this Opinion that Article 9(1) of Directive 2014/104 governs the assessment of (qualified) evidence, namely the decision of the national competition authority, that provision cannot, in my opinion, be regarded as having a purely evidential purpose. (34)
61. The existence of an infringement of competition rules which has allegedly caused the damage for which compensation is sought in the action for damages is among the necessary elements which the injured party must have in order to bring an action for damages. (35)
62. Since Article 9(1) of Directive 2014/104 provides that, in the event that the infringement of competition law is found by a final decision of a competition authority, it must be deemed to be irrefutably established, and therefore it is not necessary for the injured party bringing the action to demonstrate the existence of such an infringement, in my view, that provision must be regarded as pertaining to one of the constituent elements of civil liability for infringements of competition law provisions. (36)
63. That provision establishes, in essence, an irrefutable presumption (37) that one of those elements exists, namely the infringement, for the purposes of the action for damages, where the same infringement has been found by a final decision of the national competition authority of the Member State of the court before which the action is brought or by a review court in that Member State. In so far as this is an irrefutable presumption of a constituent element of civil liability, that presumption directly affects the legal situation of the undertaking against which the action for damages has been brought. (38)
64. In those circumstances, I consider that Article 9(1) of Directive 2014/104 constitutes a rule closely linked to the emergence, incurrence and scope of the civil liability of undertakings which have infringed competition rules and that, therefore, it may be classified as a substantive rule. (39) It follows that it is of a substantive nature, within the meaning of Article 22(1) of that directive.
(2) Whether the situation at issue in the main proceedings arose before the expiry of the time limit for transposition of Directive 2014/104
65. As is clear from point 52 above, in order to determine the temporal applicability of Article 9(1) of Directive 2014/104, it is also necessary to ascertain whether, in the present case, the situation at issue in the main proceedings arose before the expiry of the time limit for transposition of that directive or whether it continued to produce effects after the expiry of that time limit. (40)
66. In the present case, the legal situation at issue in the main proceedings in respect of which it must be ascertained whether it arose before that date must, in my view, be considered by reference to the realisation of the constituent elements of the right of KN’s heirs to compensation for the damage caused by Repsol’s infringement of the competition rules. (41)
67. In the present case, KN’s heirs seek compensation for the damage they suffered as a result of the restrictions on competition contained in the five contracts mentioned in points 11 and 14 above which they concluded with Repsol.
68. In that regard, it is apparent from the order for reference that the last contract concluded by KN’s heirs on which they base Repsol’s liability was signed on 17 July 2009 for a term of five years. It therefore appears that that contract came to an end in 2014 at the latest, thus before the expiry of the period prescribed for transposition of Directive 2014/104, namely 27 December 2016. (42) It follows that, on that date, the clauses of the contracts containing the vertical restrictions which gave rise to the unlawful conduct no longer had any effect and that therefore, at least as far as the heirs of KN specifically are concerned, (43) the infringement had ended before the date of expiry of that transposition period. (44)
69. Secondly, it follows expressly from the document initiating the action brought by KN’s heirs before the referring court that they are seeking compensation for the damage they claim to have suffered in the period from 14 January 1993 to 17 April 2013, the date on which Repsol supplied KN’s heirs for the last time. (45) It must therefore be concluded that they are seeking compensation for the damage they claim to have suffered during a period which elapsed before the date on which the period for transposition of Directive 2014/104 expired.
70. In those circumstances, it must, in my view, be held that, on the date on which the period for transposing Directive 2014/104 expired, the legal situation at issue in the main proceedings had to be regarded as having been established.
71. Consequently, in the light of Article 22(1) of Directive 2014/104, it must be concluded that Article 9(1) of the directive cannot apply ratione temporis to an action for damages which, although brought after the entry into force of the national provisions belatedly transposing that directive into national law, first, concerns an infringement resulting from restrictions on competition contained in contracts the effects of which ceased before the date on which the period for transposition of the directive expired and, secondly, concerns a claim for compensation for damage which was caused during a period which elapsed before that date.
72. It follows from all the foregoing that, in my opinion, Article 9(1) of Directive 2014/104 is not applicable in the case in the main proceedings.
B. The questions referred for a preliminary ruling
73. It is in the light of the foregoing considerations that the two questions referred for a preliminary ruling by the national court in the present case must be analysed.
74. By its first question, the referring court is essentially asking what evidential value it should attribute, in the civil action brought before it, to the 2001 and 2009 decisions of the Spanish competition authorities. That court wishes to know more specifically whether the conditions, laid down in Article 2 of Regulation No 1/2003, regarding the burden of proof, must be regarded as satisfied if, pursuant to those two decisions, the applicant has demonstrated that its exclusive supply contract under a brand name falls within the territorial and temporal scope examined by the national competition authority.
75. By its second question, the referring court asks, in essence, whether, in the event that the conditions laid down in Article 2 of Regulation No 1/2003 relating to the burden of proof are to be regarded as satisfied by reason of those two decisions, the necessary consequence must be a declaration that the contracts at issue are automatically null and void in accordance with Article 101(2) TFEU.
76. Since the two questions referred for a preliminary ruling are connected, in my view they should be answered together.
77. In that regard, it should first of all be recalled that, under Article 2 of Regulation No 1/2003, the burden of proving an infringement of Article 101(1) TFEU lies with the party alleging it.
78. It is therefore for KN’s heirs in the case in the main proceedings to prove, for the purposes of both the action for a declaration of nullity and the action for damages which they have brought, that Repsol has infringed the prohibition of agreements restricting competition. To that end, they submitted the 2001 and 2009 decisions to the referring court.
79. As noted above, (46) the two actions (for a declaration of nullity and for damages) brought by KN’s heirs are connected, but legally distinct. Since the harmonisation achieved by Directive 2014/104 with regard to actions for damages did not yet apply ratione temporis in the case in the main proceedings, (47) there is no specific secondary legislation on the question of the evidential value of the decisions of national competition authorities for either of the two actions. In those circumstances, it is necessary to analyse the two actions on the basis of the provisions of primary law and the general principles of EU law as interpreted in the case-law of the Court.
1. Relevant case-law principles
80. In that regard, it should first be recalled that Article 101(1) TFEU produces direct legal effects in relations between individuals and directly creates rights for individuals which national courts must protect. (48)
81. Any individual can rely on a breach of Article 101(1) TFEU before a national court and therefore rely on the invalidity of an agreement or practice prohibited under that provision, as laid down in Article 101(2) TFEU; that individual may also claim compensation for the harm suffered where there is a causal relationship between that harm and that agreement or practice. (49)
82. In that regard, the Court has recognised that the full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 of that provision would be put at risk if it were not open to any individual to claim damages for loss caused to him or her by a contract or by conduct liable to restrict or distort competition. (50) The same applies if any party to a contract prohibited by that provision was not able to rely on the invalidity of that contract, in so far as, without a judicial declaration of nullity, legal uncertainty would remain as to the effects of that contract which could be deemed to produce effects whereas it is automatically void since it is contrary to Article 101(1) TFEU.
83. Accordingly, national courts have jurisdiction to apply Article 101 TFEU, in particular in disputes governed by private law, this jurisdiction deriving from the direct effect of that article. (51)
84. In accordance with settled case-law, the national courts whose task it is to apply the provisions of EU law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals. It is those courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of EU law. (52)
85. In the absence of EU rules – with regard to actions for a declaration of nullity and, as applicable ratione temporis, as regards actions for damages – it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to rely on the invalidity or to claim compensation for the harm resulting from an agreement or practice prohibited under Article 101 TFEU, including those relating to the evidential value of decisions of the competition authority before the civil courts, provided that the principles of equivalence and effectiveness are observed. (53)
86. Accordingly, the rules applicable to actions for safeguarding rights which individuals derive from the direct effect of EU law must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness). (54)
87. In that regard, and specifically in the context of competition law, those rules must not jeopardise the effective application of EU rules on competition and specifically Article 101 TFEU. (55)
88. Moreover, it should also be noted that it follows from the case-law that the exercise of the jurisdiction conferred on national courts to apply Article 101 TFEU in disputes governed by private law mentioned in point 83 above may be limited, inter alia, by the principle of legal certainty, in particular by the need to ensure that those courts and the entities responsible for the administrative implementation of EU competition rules do not adopt conflicting decisions. (56)
2. Application in the present case: procedural autonomy and the limits resulting from the principles of effectiveness and legal certainty
89. It follows from the case-law principles referred to in the preceding points that, in the absence of EU rules governing the matter, it is for the Member States, in the context of their procedural autonomy, to determine the evidential value of decisions of the competition authority in disputes governed by private law in which a person relies in court on an infringement of Article 101(1) TFEU in order to claim the nullity of an agreement or practice prohibited under that provision, in accordance with Article 101(2) TFEU, and to claim compensation for the harm suffered where there is a causal relationship between that harm and that agreement or practice.
90. It is clear, however, from those case-law principles that the procedural autonomy of the Member States in that regard is limited, first, by the principles of equivalence and effectiveness and, secondly, by the principle of legal certainty.
91. As regards, in the first place, the principle of effectiveness, to which the national court refers in its order for reference, (57) I share the view that the enforcement of claims for damages due to breaches of Article 101(1) TFEU would be rendered excessively difficult if the preliminary work of a competition authority were to be accorded no effect whatsoever in the civil action for damages. (58) It follows that, in view of the particular complexity of many antitrust offences and the difficulties that injured parties face in practice in proving such offences, the principle of effectiveness dictates that the final finding of an infringement of Article 101(1) TFEU by the national competition authority be given at least the value of an indication or of some evidence in the action for damages of the existence of an infringement. (59)
92. The same applies, in my view, in respect of actions seeking to establish the invalidity of an agreement or practice prohibited under that provision, as laid down in Article 101(2) TFEU. In so far as the final finding of an infringement by the national competition authority is relevant for the purposes of determining such invalidity, the principle of effectiveness requires that such a finding must be recognised as having at least the value of an indication or of some indicative evidence in the action for a declaration of nullity in order to ensure the full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 thereof.
93. An approach according to which the civil court cannot ignore the findings of the national competition authorities in relation to infringements of EU competition law is, moreover, consistent with the necessary functional complementarity between the ‘public enforcement’ and the ‘private enforcement’ of that law. As I have already had occasion to state, (60) as has been recognised by the Court, ‘private’ and ‘public enforcement’ are both essential tools for strengthening the effectiveness of the policy of supressing anticompetitive practices. In that respect, private enforcement not only has a compensatory function intended to satisfy private interests, but also a deterrent function which contributes to the pursuit of the public-interest objectives underlying the protection of competition. Thus, the fewer practical obstacles – such as the requirement of proof of the infringement when the same infringement or an infringement coinciding at least in part has already been established by the competition authority – there are for injured parties to bring actions for damages against infringements of competition rules, the stronger that deterrent function will be.
94. It is true that the principle of effectiveness and the requirement to ensure the full effectiveness of Article 101 TFEU cannot be interpreted to the extent of requiring the Member States to acknowledge an irrefutable presumption, such as that which is now provided for, in respect of actions for damages, in Article 9(1) of Directive 2014/104. (61) However, in my opinion, within the margin of discretion enjoyed by a civil court in accordance with its own national procedural rules – which fall within the scope of the procedural autonomy of the Member States – relating to the assessment of evidence, the value which that court, under the principle of effectiveness, must attribute to a finding of an infringement contained in a final decision of the national competition authority must vary according to the level of coincidence between the infringement found in that decision and the alleged infringement on which the civil action brought before it is based.
95. Thus, where there is coincidence between the infringement found by the national competition authority under Article 101(1) TFEU and the alleged infringement on which the civil action brought before the national court is based concerning the nature of the infringement and its material, personal, temporal and territorial scope, (62) I consider that the principle of effectiveness and the requirement to ensure the full effectiveness of Article 101 TFEU require the civil court to attribute to that finding not only the value of an indication or of some evidence, but at least the value of prima facie evidence of the existence of that infringement. (63) In such a case, there would be complete coincidence between the infringement found and the infringement relied on for the purposes of the civil action which, in the light of the abovementioned principles, would not justify, in my view, the attribution of merely the value of an indication or some evidence to the finding of the national competition authority.
96. In that regard, the reference to the ‘nature of the infringement’ implies that it must be the same infringement, based on the same classification of the facts contained in the competition authority’s decision. The reference to the ‘material … scope’ of the infringement implies that the coincidence must concern the conduct explicitly mentioned in the competition authority’s decision. (64) The reference to the ‘personal … scope’ of the infringement implies that that decision constitutes prima facie evidence of the infringement only for those undertakings in respect of which the infringement of the competition rules is established in the final decision. (65) The reference to the ‘temporal … scope’ of the infringement implies that the findings in the final decision constitute prima facie evidence for the civil court only for the duration of the infringement as established in that final decision. Similarly, the reference to the ‘territorial scope’ of the infringement implies that the prima facie evidential nature of the decision for the civil court covers only the territory in which the infringement was found in that decision.
97. However, where the coincidence between the infringement of Article 101(1) TFEU found by the national competition authority and that on which the civil action brought before the national court is not complete but only partial, because, for example, the finding of the national competition authority concerns anticompetitive practices which, although similar and implemented by the same undertaking, do not coincide exactly with those found in the competition authority’s decision, the national court cannot completely ignore the decision, but will have to attribute to it the value of an indication or of some evidence, in accordance with the principle of effectiveness and the requirement to ensure the full effectiveness of Article 101 TFEU.
98. An example of such a situation may be the case, inspired by the present case, in which a distributor brings a civil action for infringement of Article 101(1) TFEU by arguing that certain clauses of its contracts contain vertical restrictions similar to those specifically characterised as infringements in the national competition authority’s decision. In such a case, the material scope of the infringement found in the decision and that of the infringement relied on for the purposes of the civil action do not coincide, but all the other elements (namely the nature of the infringement and the personal, temporal and territorial scope) do. In that case, the civil court cannot ignore the national competition authority’s decision finding an infringement of Article 101(1) TFEU but must attribute to it the value of an indication or of some evidence of the existence of the infringement, in the sense explained in point 106 of this Opinion.
99. As regards, in the second place, the principle of legal certainty, it should first be recalled that, in accordance with Article 5 of Regulation No 1/2003, the competition authorities of the Member States are to have the power to apply Articles 101 and 102 TFEU in individual cases. That regulation provides that only decisions of the Commission have binding effect in proceedings before national courts, inter alia in Article 16 thereof, and that effect cannot be extended to decisions of national competition authorities unless the EU legislature makes express provision to that effect. (66)
100. That, however, does not detract from the fact that, as is clear from the case-law referred to in point 88 above, the principle of legal certainty requires that national courts do not, as far as possible, deliver decisions which conflict with the decisions of the entities responsible for the administrative implementation of EU competition law, namely, in addition to the Commission, the national competition authorities.
101. It follows that the principle of legal certainty also requires national courts to recognise that a final finding by the national competition authority of an infringement of Article 101 TFEU has at least the value of an indication or of some evidence in the civil actions brought before them for infringement of EU competition law and of prima facie evidence where there is a coincidence between the infringement found by the national competition authority and that on which the civil action before the national court is based concerning the nature of the infringement and its material, personal, temporal and territorial scope.
102. That said, I consider it appropriate to make four further observations.
103. In the first place, it is clear from all of the foregoing that, despite the procedural autonomy of the Member States, civil courts cannot ignore a decision by the competition authority finding an infringement of EU competition law. It follows that national legislation (67) or case-law, such as that referred to by the national court, which would deny any value, even of an indicative nature, of such a decision by the national competition authority is contrary to EU law and specifically to the requirement to ensure the full effectiveness of Article 101 TFEU and to the requirements stemming from the principles of effectiveness and legal certainty.
104. In the second place, I would like to clarify that the considerations set out in points 89 to 101 above apply exclusively to civil actions which are based on a finding by the national competition authority of an infringement of EU competition rules. Those principles therefore do not apply to civil actions concerning exclusively an infringement of national competition law. The requirements associated with the principle of effectiveness and the requirement to ensure full effectiveness relate exclusively to EU law and in particular, in the present case, to Article 101 TFEU. They do not necessarily extend to national law. Obviously, the situation is different in the case of an action for damages to which Article 9(1) of Directive 2014/104 applies. (68)
105. In the third place, I consider it appropriate, in order to guide the referring court, to provide some additional clarifications as to what is meant by the value ‘of an indication or of some evidence’ and the value of ‘prima facie evidence’. First of all, it is clear that those concepts must be interpreted by the national court in the context of its procedural rules for the assessment of evidence which, as has already been mentioned, fall within the scope of the procedural autonomy of the Member States.
106. Nevertheless, an ‘indication’ or ‘some evidence’ indicates, in my view, an element which supports a finding by the civil court of the existence of an infringement, but which must be assessed and substantiated in the light of other evidence in order to be able to consider the existence of the infringement as confirmed.
107. Prima facie evidence, (69) however, corresponds, in general, to an element capable of demonstrating the likelihood of the alleged fact on the basis of maxims of experience which make the existence of that fact appear probable. From that perspective, the national decision finding the infringement leads the court, in the exercise of its discretion in respect of evidence under its national law, to assume that the infringement exists by relying on the maxim of experience that infringements found in the decisions of competition authorities have generally occurred. However, there remains the possibility for the party against which the action is brought to adduce evidence which would lead the court to be convinced of the contrary. (70)
108. In the fourth place, as regards the disputes in the main proceedings, it is for the referring court to assess, on the basis of all the foregoing considerations and its national law, the evidential value of the 2001 and 2009 decisions in the civil action before it. In order to guide that court in its assessment, the Court may, however, provide it with full guidance on the interpretation of EU law which might be useful to it. (71)
109. In that regard, as far as the 2001 decision is concerned, it would appear that it relates exclusively to the finding of an infringement of national competition law without there having been a parallel application of Article 101(1) TFEU. If that is the case, which it is for the referring court to confirm, then the evidential value of that decision in the civil action before the referring court would be governed exclusively by national law, as is clear from point 104 above.
110. By contrast, the 2009 decision contains the parallel application of national competition law and Article 101(1) TFEU.
111. In those circumstances it is for the referring court to ascertain whether there is coincidence between the infringement found and the infringement on which the civil actions (for a declaration of nullity and damages) brought before it are based as regards the nature of the infringement and its material, personal, temporal and territorial scope, as understood in the light of the considerations set out in point 96 above.
112. In that case, the referring court should attribute the value of prima facie evidence, for the purposes of the civil action, to the finding of an infringement contained in the 2009 decision. If, however, there is only partial coincidence, that decision will have the value of indicative evidence of the existence of the infringement for the purposes of the two actions for a declaration of nullity and for damages.
113. More specifically, as regards the temporal and territorial scope, it would appear to follow from the questions referred for a preliminary ruling that they have been established by KN’s heirs. It appears from the file that the contracts concluded between KN’s heirs and Repsol fall within the temporal and territorial scope of the finding of an infringement contained in the 2009 decision.
114. It would also appear that the personal scope of the two infringements coincides in so far as both the infringement found and the infringement relied on in the civil action were committed by Repsol.
115. It thus remains to be determined whether there is coincidence between the infringement found and that relied on in the civil action as regards the nature and material scope of the infringement.
116. In that regard, I note, however, that, on reading the operative part of the 2009 decision reproduced in point 16 above, it appears that the finding of an infringement contained in that decision has a very broad material scope. It concerns all the independent contractors operating under the Repsol name, all the contracts including the clauses giving rise to the infringement, and all the clauses described therein. Ultimately, it is for the referring court to ascertain whether the clauses in the contracts concluded by KN or his heirs with Repsol which fall within the temporal scope of the 2009 decision may be regarded as falling within the material scope of the finding contained in that decision with the result that it may be considered that there is complete coincidence between the infringement found and that relied on for the purposes of the civil action.
IV. Conclusion
117. Having regard to all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Juzgado de lo Mercantil de Madrid (Commercial Court, Madrid, Spain) as follows:
(1) Article 9(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union is not applicable ratione temporis to an action for damages which, although brought after the entry into force of the national provisions belatedly transposing that directive into national law, first, concerns an infringement resulting from restrictions on competition contained in contracts the effects of which ceased before the date on which the period for transposition of Directive 2014/104 expired and, secondly, concerns a claim for compensation for damage which was caused during a period which elapsed before that date.
(2) In the absence of EU rules governing the matter or that are applicable ratione temporis, it is for the Member States, in the context of their procedural autonomy, to determine the evidential value of decisions of the national competition authority in disputes governed by private law in which a person relies in court on an infringement of Article 101(1) TFEU in order to claim the invalidity of an agreement or practice prohibited under that provision, in accordance with Article 101(2) TFEU, and/or to claim compensation for the harm suffered where there is a causal relationship between that harm and that agreement or practice, provided that the principles of equivalence and effectiveness are observed.
The principle of effectiveness and the requirement to ensure the full effectiveness of Article 101 TFEU, and the principle of legal certainty require the final finding by the national competition authority of an infringement of Article 101(1) TFEU to be afforded at least the value of an indication or of some evidence for the purposes of the civil action.
Where there is coincidence between the infringement of Article 101(1) TFEU established by a final decision of the national competition authority and the alleged infringement on which the civil action before the national court is based as regards the nature of the infringement and its material, personal, temporal and territorial scope, which it is for the national court to determine, the principle of effectiveness and the requirement to ensure the full effectiveness of Article 101 TFEU, and the principle of legal certainty require that that final finding by the national competition authority be afforded at least the value of prima facie evidence of the existence of the infringement for the purposes of the civil action.