OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 21 September 2023 (1)
Case C‑605/21
Heureka Group a.s.
v
Google LLC
(Request for a preliminary ruling
from the Městský soud v Praze (Prague City Court, Czech Republic))
(Reference for a preliminary ruling – Actions for damages under national law for infringements of competition law provisions – Possibility of relying on a non-final Commission decision – Directive 2014/104/EU – Scope ratione temporis – Infringement beginning before the directive enters into force – Limitation period – Compatibility of the original national legislation with Article 102 TFEU and the principle of effectiveness of EU law)
Contents
I. Introduction
1. Under the rules on limitation laid down in Article 10 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, (2) limitation periods are not to begin to run before the infringement of competition law has ceased and the claimant knows, or can be reasonably expected to know, of the key elements characterising the infringement.
2. In the context of this reference for a preliminary ruling, the Court is, primarily, called upon to examine whether, prior to the expiry of the time limit for transposition of Directive 2014/104, the requirement that the limitation period cannot begin to run before the infringement has ceased already stemmed from Article 102 TFEU, read in conjunction with the principle of effectiveness. In addition, the referring court asks about the compatibility with EU law of certain other aspects of the former national rules on limitation, concerning, inter alia, the knowledge that the conduct in question constitutes an infringement of competition rules and the suspension of limitation periods for the duration of the procedure before the European Commission and the judicial challenge to the infringement decision.
II. Legal framework
A. European Union law
1. Regulation (EC) No 1/2003
3. Article 2 of Regulation (EC) No 1/2003, (3) entitled ‘Burden of proof’, states:
‘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] of the Treaty shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article [101](3) [TFEU] shall bear the burden of proving that the conditions of that paragraph are fulfilled.’
4. Article 16 of that regulation, entitled ‘Uniform application of Community competition law’, provides:
‘1. When national courts rule on agreements, decisions or practices under Article [101] or [102 TFEU] which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article [267 TFEU].
2. When competition authorities of the Member States rule on agreements, decisions or practices under Article [101] or [102 TFEU] which are already the subject of a Commission decision, they cannot take decisions which would run counter to the decision adopted by the Commission.’
5. Under Article 25(2) of the regulation:
‘Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.’
2. Directive 2014/104
6. Recital 36 of Directive 2014/104 states:
‘National rules on the beginning, duration, suspension or interruption of limitation periods should not unduly hamper the bringing of actions for damages. This is particularly important in respect of actions that build upon a finding by a competition authority or a review court of an infringement. To that end, it should be possible to bring an action for damages after proceedings by a competition authority, with a view to enforcing national and Union competition law. The limitation period should not begin to run before the infringement ceases and before a claimant knows, or can reasonably be expected to know, the behaviour constituting the infringement, the fact that the infringement caused the claimant harm and the identity of the infringer. Member States should be able to maintain or introduce absolute limitation periods that are of general application, provided that the duration of such absolute limitation periods does not render practically impossible or excessively difficult the exercise of the right to full compensation.’
7. Article 2 of that directive is entitled ‘Definitions’ and provides, in points 1 and 12 thereof:
‘For the purposes of this Directive, the following definitions apply:
(1) “infringement of competition law” means an infringement of Article 101 or 102 TFEU, or of national competition law;
…
(12) “final infringement decision” means an infringement decision that cannot be, or that can no longer be, appealed by ordinary means’.
8. Article 9 of the directive, entitled ‘Effect of national decisions’, provides:
‘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.
3. This Article is without prejudice to the rights and obligations of national courts under Article 267 TFEU.’
9. Article 10 of Directive 2014/104, entitled ‘Limitation periods’, states:
‘1. Member States shall, in accordance with this Article, lay down rules applicable to limitation periods for bringing actions for damages. Those rules shall determine when the limitation period begins to run, the duration thereof and the circumstances under which it is interrupted or suspended.
2. Limitation periods shall not begin to run before the infringement of competition law has ceased and the claimant knows, or can reasonably be expected to know:
(a) of the behaviour and the fact that it constitutes an infringement of competition law;
(b) of the fact that the infringement of competition law caused harm to it; and
(c) the identity of the infringer.
3. Member States shall ensure that the limitation periods for bringing actions for damages are at least five years.
4. Member States shall ensure that a limitation period is suspended or, depending on national law, interrupted, if a competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates. The suspension shall end at the earliest one year after the infringement decision has become final or after the proceedings are otherwise terminated.’
B. Czech law
10. According to the information provided by the referring court, prior to the entry into force of zákon č. 262/2017 Sb., o náhradě škody v oblasti hospodářské soutěže (Law No 262/2017 on compensation for harm in the sphere of competition) on 1 September 2017, the limitation of the right to compensation for harm was initially, up until 31 December 2013, governed by zákon č. 513/1991 Sb., obchodní zákoník (Law No 513/1991 establishing the Commercial Code) and subsequently, from 1 January 2014 to 31 August 2017, by zákon č. 89/2012 Sb., občanský zákoník (Law No 89/2012 establishing the Civil Code). According to the referring court, the difference between those two pieces of legislation lies in the fact that under the Commercial Code the limitation period is four years, whereas under the Civil Code that period is three years. For the purpose of the proceedings before the Court, the referring court, which alone has jurisdiction to interpret and apply national law, (4) deems the rules of the Civil Code relevant.
11. Paragraph 620(1) of the Civil Code states:
‘The decisive circumstances for the limitation period applicable to the right to compensation for harm to begin to run shall include knowledge of the harm and of [the identity] of the person liable to compensate for that harm. This shall also apply, mutatis mutandis, for the purposes of the compensation for the harm.’
12. Paragraph 629(1) of the Civil Code provides:
‘The limitation period shall be a period of three years.’
13. Under Paragraph 9(1) to (3) of Law No 262/2017 on compensation for harm in the sphere of competition:
‘(1) The limitation period for the exercise of the right to compensation for harm under this Law shall be a period of five years; the provisions of Paragraphs 629 and 636 of the Civil Code shall not apply.
(2) The limitation period shall begin to run on the day on which the person concerned knows, or should or could have known, of the harm, the [identity] of the person liable to compensate for that harm and the restriction of competition, and no earlier than the day on which the restriction of competition ceased.
(3) The limitation period shall not run for the duration of the investigation or the procedure before the competition authority concerning the same restriction of competition, and for a period of one year from the day on which (a) the decision adopted by the competition authority or by a court finding that such a restriction exists has become final or (b) the investigation, the procedure before the competition authority or the procedure before the court are otherwise terminated.’
III. The facts and the main proceedings
14. Heureka Group a.s. (‘Heureka’), a company operating on the market in sales price comparison services in the Czech Republic, the applicant in the main proceedings, brought before the Městský soud v Praze (Prague City Court, Czech Republic), the referring court, an action for damages against Google LLC further to the Commission decision of 27 June 2017 in Google Search (Shopping) (‘Decision C(2017) 4444 final’). (5)
A. Procedure before the Commission in ‘Google Shopping’ and Decision C(2017) 4444 final
15. On 30 November 2010, the European Commission published a press release in which it stated that it had initiated proceedings against Google on the basis, inter alia, of Article 2(1) of Regulation (EC) No 773/2004 concerning a potential abuse of a dominant position in the field of online searches. (6)
16. In 2013, Google offered commitments to the Commission with a view to addressing that institution’s concerns.
17. On 27 May 2014, the Sdružení pro internetový rozvoj v České republice (Association for Internet Development in the Czech Republic, ‘the SPIR’), of which Heureka is a member, issued a press release expressing its disagreement with those commitments.
18. On 15 April 2015, the Commission adopted a statement of objections addressed to Google, in which it reached the provisional conclusion that the practices at issue constituted an abuse of a dominant position and, therefore, infringed Article 102 TFEU.
19. On 14 July 2016, the Commission adopted a supplementary statement of objections addressed to Google and also initiated infringement proceedings under Article 102 TFEU against Google’s parent company, Alphabet, Inc.
20. On 27 June 2017, the Commission adopted Decision C(2017) 4444 final. By that decision, the Commission found that Google and Alphabet, Inc., since the latter had taken control of Google, had infringed Article 102 TFEU and Article 54 of the Agreement on the European Economic Area (‘EEA’). In the Commission’s view, Google abused the dominant position it held in 13 national markets for general search services within the EEA, including the Czech Republic’s market, by decreasing traffic from its general results pages to competing comparison shopping services and increasing traffic to its own comparison shopping service, which was capable of having, or was likely to have, anticompetitive effects on the 13 corresponding national markets for specialised comparison shopping search services and on those national markets for general search services. (7)
21. The Commission concluded that that infringement had been taking place since February 2013 in the Czech Republic and was continuing as at the date of the adoption of the Decision C(2017) 4444 final, that is to say, on 27 June 2017. The Commission therefore considered that Google should be ordered to bring an end to its conduct within 90 days and to refrain from similar conduct having the same object or effect. (8)
22. On 12 January 2018, the summary of Decision C(2017) 4444 final was published in the Official Journal of the European Union.
23. By application lodged at the Registry of the General Court on 11 September 2017, Google brought an action against Decision C(2017) 4444 final. In its judgment of 10 November 2021, Google and Alphabet v Commission (Google Shopping) (T‑612/17, EU:T:2021:763), the General Court annulled that decision in so far only as the Commission found therein an infringement by Google in 13 national markets for general search services within the EEA on the basis of the existence of anticompetitive effects in those markets and dismissed Google’s action as to the remainder, inter alia approving the Commission’s analysis as regards the market for specialised comparison shopping search services.
24. By application dated 20 January 2022, Google lodged an appeal, which is currently pending, against the judgment of the General Court. (9)
B. Heureka’s national action for damages
25. By an application of 25 June 2020, lodged on 26 June 2020, Heureka brought an action for damages against Google before the Městský soud v Praze (Prague City Court). That action seeks compensation for the harm allegedly suffered by Heureka as a result of the abuse of a dominant position in which Google, according to Decision C(2017) 4444 final, engaged in the Czech Republic for the period from February 2013 to 27 June 2017. Heureka claimed that Google had positioned and displayed its own sales price comparison service in the best possible place amongst the results in its general search services, which reduced the number of visits to the sales price comparison portal Heureka.cz.
26. Google opposed that action, arguing, inter alia, that the right to compensation was time-barred for the period from, at least, February 2013 to 25 June 2016. (10) That argument is based on the assumption that Heureka would have been in a position to know both the identity of the infringer and the fact that it had suffered harm well before the adoption of Decision C(2017) 4444 final.
27. In that regard, Google states that it was quite clear that the operator of the search engine called ‘Google’ was the company Google, in particular on account of the Commission’s press release of 30 November 2010 (point 15 above).
28. Furthermore, it is Google’s view that, in any case, the publication, on 27 May 2014, of the press release by which the SPIR expressed its disagreement with the commitments put by Google to the Commission (point 17 above) was sufficient for the limitation period to begin running.
29. For those reasons, Google contends that the limitation period applicable in the present case had begun to run from February 2013, that is to say, from the beginning of the infringement on Czech territory and the start of the occurrence of the alleged harm, or, at the latest, from 27 May 2014, the date of publication of the SPIR’s press release.
30. According to Google, there was nothing to prevent Heureka from bringing its action for damages since, in the course of the proceedings relating to that action, it could have gradually expanded the scope of the harm suffered by adding the partial occurrences of harm as they accrued over time.
31. In that context, the Městský soud v Praze (Prague City Court) has doubts as to the compatibility of the former national legislation governing limitation periods with Article 10(2) of Directive 2014/104 and, as the case may be, with Article 102 TFEU and with the principle of effectiveness. The referring court observes that, under Paragraph 620(1) of the Civil Code, the three-year limitation period begins to run as soon as the injured party knows, or as soon as it could be deemed to have known, the identity of the infringer and of the harm suffered. As regards the condition relating to knowledge of the fact that harm has been suffered as a result of the infringement in question, according to an interpretation by the Nejvyšší soud (Supreme Court, Czech Republic) of Paragraph 620(1) of the Civil Code, knowledge of partial harm is enough for the limitation period to begin running. In particular, in the case of continuing or repeated infringements, harm is divisible and every ‘new occurrence of harm’ can be claimed separately and sets a new limitation period running.
32. According to the referring court, in the present case, this would mean that every general search on Google’s webpage which led to a positioning and display of results more favourable to Google’s price comparison service would have set a new and separate limitation period running.
33. In addition, that court notes that, unlike Article 10 of Directive 2014/104, the Civil Code does not require that the injured party knows that the conduct in question constitutes an infringement of competition law. Nor does the Civil Code contain a rule under which the limitation period can be suspended or interrupted for the period of the investigation into that conduct, or a rule that the suspension of the limitation ends at the earliest one year after the infringement decision has become final.
IV. Request for a preliminary ruling and procedure before the Court
34. In those circumstances, the Městský soud v Praze (Prague City Court) referred the following questions to the Court of Justice for a preliminary ruling by decision of 29 September 2021, received on 30 September 2021:
‘(1) Must Article 21(1) of [Directive 2014/104] and the general principles of EU law be interpreted as meaning that Directive 2014/104, in particular Article 10 thereof, will apply, directly or indirectly, to the present dispute seeking compensation in respect of all harm caused by a breach of Article 102 TFEU, which commenced before the date on which Directive 2014/104 entered into force and ended after the expiry of the period for transposition of that directive, in a situation when the action seeking compensation in respect of harm was also lodged after the expiry of the period for transposition, or such that Article 10 of Directive 2014/104 will apply only to the part of the conduct (and the ensuing part of harm) occurring after the date on which Directive 2014/104 entered into force or, as the case may be, after the expiry of the deadline for its transposition?
(2) Do the meaning and purpose of Directive 2014/104 and/or Article 102 TFEU and the principle of effectiveness require Article 22(2) of Directive 2014/104 to be interpreted such that the “national measures adopted pursuant to Article 21, other than those referred to in [Article 22], paragraph 1” are those provisions of national legislation through which Article 10 of Directive 2014/104 was implemented, in other words, do Article 10 of Directive 2014/104 and the rules on limitation fall within the first or the second paragraph of Article 22 of Directive 2014/104?
(3) Is national legislation and its interpretation in line with Article 10(2) of Directive 2014/104 and/or with Article 102 TFEU and with the principle of effectiveness if it links “knowledge of the fact that harm was caused” – relevant to the commencement of the subjective limitation period – to the awareness of the injured party “of individual partial [occurrences of] harm”, which occur over time in the course of continuous or continuing anticompetitive conduct (as case-law is based on the assumption that the claim in question for compensation in respect of harm is, in its entirety, divisible), and in relation to which separate subjective limitation periods start to run regardless of the knowledge of the injured party of the full extent of the harm caused by the entire infringement of Article 102 TFEU, that is, national legislation and its interpretation that allow the limitation period for a claim for compensation in respect of harm caused by anticompetitive conduct to begin to run before the point at which ceased that conduct consisting of more favourable placement and display of one’s own price comparison engine in breach of Article 102 TFEU?
(4) Do Article 10(2), (3), and (4) of Directive 2014/104 and/or Article 102 TFEU and the principle of effectiveness preclude national legislation that provides that a subjective limitation period, in the case of actions seeking compensation in respect of harm, is three years and starts to run on the day when the injured party learned or could have learned of partial harm and of the person obliged to compensate for it, but does not take into account (i) the point at which the infringement ceased; (ii) the knowledge of the injured party that the conduct constitutes an infringement of the competition rules and that, at the same time (iii) does not suspend or interrupt the three-year limitation period during the proceedings before the Commission concerning the ongoing infringement of Article 102 TFEU; and (iv) does not contain the rule that the suspension of the limitation period will end no earlier than one year after the decision concerning the infringement has become final?’
35. In the course of the preliminary ruling procedure before the Court, written observations were submitted by Heureka, Google and the Commission.
36. On 22 June 2022, that is to say, following the closure of the written part of the procedure in the present case on 21 March 2022, the Court gave the judgment in Volvo and DAF Trucks (C‑267/20, EU:C:2022:494; ‘the judgment in Volvo’), in which it ruled, inter alia, on the nature of Article 10 of Directive 2014/104 and on the temporal applicability of that provision. In view of the similarities between that case and the present one, the Court drew the attention of the referring court to that judgment, asking it whether, in the light of the judgment, it wished to maintain its request for a preliminary ruling.
37. By letter of 29 June 2022, received on 1 July 2022, the referring court informed the Court that it maintained its request for a preliminary ruling.
38. However, by written communication received at the Court on 27 September 2022, the referring court informed the Court that it was withdrawing the first and second questions of its reference for a preliminary ruling but that it maintained its third and fourth questions.
39. On 20 December 2022, the Court and the Advocate General put questions for a written response to all the parties to the proceedings, to which all those parties replied. The referring court also lodged observations further to those questions; those observations were registered as an addendum to the request for a preliminary ruling.
40. All the parties were also represented at the hearing on 20 March 2023.
V. Analysis
41. By its questions referred for a preliminary ruling, the referring court seeks, in essence, to ascertain whether Heureka, the applicant in the main proceedings, which brought its action on 26 June 2020 and considers itself to have been injured by an abuse of a dominant position committed by Google between February 2013 and 27 June 2017, can still seek compensation for the harm caused over that entire period, or whether its right to compensation is on the contrary already time-barred in respect of some of that period.
42. That question arises inter alia because, prior to the transposition of Directive 2014/104, Czech law linked the starting point of the limitation period solely to knowledge of the harm and the person who caused it. The view expressed in the relevant case-law was therefore that the totality of harm arising in the course of a continuing infringement of competition law was divisible in partial occurrences of harm and that a separate limitation period began to run for each partial occurrence of harm. The right to compensation therefore became time-barred at separate junctions and gradually.
43. In accordance with that case-law and with the former three-year limitation period – and if it is assumed, as Google alleges (see points 26 to 29 above), that Heureka knew, or should have known, of the harm and the person who caused it from the start of the period in relation to which it seeks compensation or, in any event, before the end of the infringement as found by the Commission – a proportion of Heureka’s right to compensation arising from that infringement would already have been time-barred when it brought its action. (11)
44. However, in the meantime, Directive 2014/104 has entered into force, Article 10(2) of which makes the start of the limitation period applicable to an action for damages for an infringement of competition law subject not only to the claimant’s knowledge of the key elements of that infringement, but also to the fact that the infringement has ceased.
45. Directive 2014/104 entered into force on 26 December 2014. The deadline for its transposition expired on 27 December 2016. On 1 September 2017, Law 262/2017 on compensation for harm in the sphere of competition, transposing Directive 2014/104 into Czech law, entered into force.
46. Therefore, the referring court asks, first of all, about the temporal application of Article 10 of Directive 2014/104 (first and second questions referred for a preliminary ruling). Next, it wishes to ascertain whether rules on limitation such as those laid down in Czech law prior to the entry into force of the national law transposing that directive are compatible with the requirements of that provision and/or Article 102 TFEU read in conjunction with the principle of effectiveness (third and fourth questions referred for a preliminary ruling).
47. In the judgment in Volvo, the Court has already clarified certain aspects of the temporal application of Article 10 of Directive 2014/104. It is for that reason that the referring court informed the Court that, following that judgment, it was withdrawing its first and second questions referred for a preliminary ruling. It is, however, useful to examine the specific implications of the findings made in the judgment in Volvo for the present case (Part B below).
48. That examination will reveal that the answer to the question whether Heureka can still seek compensation for the harm suffered throughout the period of infringement turns on whether the right was already time-barred under national law in respect of part of that period when the deadline for transposition of Directive 2014/104 expired. The answer to that question is, in turn, dependent on whether, prior to the expiry of the deadline for transposition of that directive, it already followed from Article 102 TFEU, read in conjunction with the principle of effectiveness, that national laws could not provide that the limitation period begins before a continuing infringement of EU competition law ceases. That question corresponds, in essence, to the third question and to point (i) of the fourth question referred for a preliminary ruling. In that context, consideration must also be given to points (ii), (iii) and (iv) of the fourth question referred for a preliminary ruling, which concern the compatibility with EU law of other aspects of the former national rules on limitation (Part C below).
49. However, before turning to those matters, a preliminary question arises: in the present case, unlike the situation in the cases which gave rise to the judgment in Volvo (12) and to the order in Deutsche Bank, (13) Commission Decision C(2017) 4444 final, upon which Heureka relies to demonstrate the existence and the duration of the infringement which caused harm to it, is not yet final (see points 23 and 24 above). This raises the question whether the national court can nevertheless rely on that decision for the purposes of establishing the infringement in question and its duration and of determining the limitation period in the main proceedings, or whether it is obliged to stay that case until that decision becomes final. Since it is for the Court, under the procedure laid down in Article 267 TFEU providing for cooperation with national courts, to provide the referring court with an answer which will be of use to it and enable it to decide the case before it, (14) this preliminary question must be clarified before consideration is given to the questions referred by the national court for a preliminary ruling (Part A below).
A. Preliminary question: can the national court rely on a Commission decision that is not yet final?
50. Under Article 2(12) of Directive 2014/104, a ‘final infringement decision’ is an infringement decision that cannot be, or that can no longer be, appealed by ordinary means.
51. Decision C(2017) 4444 final is not yet final within the meaning of that provision, since it has been the subject of an action for annulment before the General Court, the judgment of which in Google and Alphabet v Commission (Google Shopping) (T‑612/17, EU:T:2021:763) is currently being challenged before the Court of Justice (points 23 and 24 above).
52. Does that fact prevent the claimant and the national court from relying on the findings of the Commission decision, in particular as regards the existence of the infringement and its duration?
53. I do not think so.
54. Thus, even a decision that is not yet final, in which the Commission finds an infringement of competition law, has binding effect so long as it has not been annulled (see Section 1 below). It is for the national court to draw the appropriate conclusions from that fact in the proceedings before it and to assess, where appropriate, if it must stay the proceedings until the Commission decision becomes final, without it being obliged to do so (see Section 2 below). That question of whether the national court can rely on a Commission decision which is not final must be distinguished from the question whether the limitation period must be suspended in such a situation (see, in this regard, points 132 to 138 below).
1. Binding nature of a Commission decision that is not yet final
55. Measures of the EU institutions are in principle presumed to be lawful and accordingly produce legal effects until such time as they are annulled or withdrawn. (15)
56. That principle also entails the obligation to acknowledge that such measures are fully effective as long as they have not been declared invalid by the Court and to recognise their enforceability unless the Court has decided to suspend the operation of those measures. (16)
57. It is true that, pursuant to the fourth paragraph of Article 288 TFEU, a decision adopted by the Commission is binding only on those to whom it is addressed, if it specifies any such persons. It is, however, established that such a decision can also produce binding legal effects capable of affecting the interests of third parties if it is of direct and individual concern to them and brings about a distinct change in their legal position. (17)
58. Since such a decision produces binding legal effects for those to whom it is addressed and third parties who are directly and individually concerned on the basis of the infringement as established in that decision, other third parties such as Heureka and the referring court must also be able to rely on the findings made in the decision, provided that it has not been annulled. The obligation, on the national authorities and courts, to respect the presumption of legality of Commission decisions also stems from the principle of sincere cooperation under Article 4(3) TEU. (18)
59. Furthermore, in accordance with the first sentence of Article 16(1) of Regulation No 1/2003, when national courts rule on agreements, decisions or practices under Article 101 or Article 102 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. That provision does not lay down a requirement that such a decision is final.
60. As such, it differs from Article 9 of Directive 2014/104, which ascribes probative value to decisions of national competition authorities only where those decisions are final. (19) That difference is, however, justified by the primacy of EU law and the binding nature of rulings given by EU institutions. (20)
61. It is true that, in paragraph 42 of its judgment in Sumal, (21) the Court found that, in order to hold a legal entity within an economic unit liable for an infringement of competition law, it was necessary to prove that at least one legal entity belonging to that economic unit had committed such an infringement by means of a final (22) decision of the Commission or to establish that infringement independently before the national judge where no decision as to the existence of an infringement has been adopted by the Commission.
62. However, it does not appear to follow from that that an injured party or a national court can rely only on the findings of a Commission decision that has become final. If that were the case, this would mean that the claimant would be required, in all cases, to wait until the end of the proceedings for the judicial review of the Commission decision in order to rely on the findings of that decision. This would risk rendering it excessively difficult for injured parties to exercise their right to compensation under Articles 101 and 102 TFEU, particularly since it is not inconceivable that the absolute limitation period applicable to that right may expire before the judicial proceedings are completed. Injured parties could therefore find themselves denied the possibility of bringing actions based on a decision establishing an infringement of EU competition rules. (23)
2. Is there an obligation to stay the main proceedings?
63. The – in principle – binding nature of a Commission decision that is not yet final is confirmed by the fact that, pursuant to the third sentence of Article 16(1) of Regulation No 1/2003, the need to stay the national proceedings in such circumstances is left to the assessment of the national court. If such a court were unable to rely on a Commission decision that is not yet final, the staying of its proceedings would in fact be an automatic consequence of the decision’s non-final nature.
64. More specifically, it actually follows from the structure of Article 16(1) of Regulation No 1/2003 that the possibility of suspending the national proceedings appears primarily to have been envisaged by the legislature in the situation in which a decision has not yet been adopted by the Commission but rather merely contemplated by it. (24) Although I fail to see why a stay of proceedings might not also prove, as the case may be, useful if not necessary where a Commission decision is not yet final, that structure does however further emphasise the non-automatic nature of a stay of proceedings in such a situation.
65. Nor does Directive 2014/104 prohibit a national court from continuing its proceedings where a procedure concerning the same infringement is ongoing before the Commission. Proceedings for the public and private enforcement of EU competition law are complementary and may in principle be carried out simultaneously. (25) This must also apply in a case in which the procedure before the Commission is closed but proceedings for the judicial review of its decision are ongoing before the EU judicature.
66. As the Commission argues, a general obligation to stay the national proceedings would have the problem of encouraging undertakings which the Commission has found to have infringed EU competition rules to bring an action against the decision and then an appeal against the judgment of the General Court with the sole aim of delaying restorative justice being served.
67. When assessing whether it is necessary or appropriate to stay proceedings relating to a claim for damages further to a Commission decision that is not yet final, the national court must take account, first, of the economy of the procedure and of its duty of sincere cooperation with the EU institutions which may, where appropriate, argue in favour of a stay of proceedings.
68. Second, account must likewise be taken of the claimant’s right to an effective remedy and of the defendant’s right to legal certainty, which may argue in favour of the need to resolve the dispute within a reasonable time. (26) In that context, consideration must be given, inter alia, to the risk that the absolute limitation period might expire during the stay of proceedings, to the stage of the proceedings for judicial review of the contested decision before the European Union judicature, that is to say, to the question whether or not a final decision in those proceedings can be expected in due course, as well as to the national court’s own assessment of the validity of the Commission decision. Where there is doubt in this regard, the national court must refer a question to the Court for a preliminary ruling. (27)
69. One further aspect that may be taken into account when assessing whether it is appropriate to stay proceedings is the existence, or absence, under national law of an extraordinary legal remedy which allows, where appropriate, the decision given in the proceedings relating to compensation for harm to be revised. There does not appear to be a general requirement in EU law for such an extraordinary remedy to be introduced; (28) however, in the present case, according to the information provided by the referring court, one does exist in Czech law.
70. It follows from all the foregoing that, even if it is not yet final, a Commission decision finding an infringement, such as Decision C(2017) 4444 final, has binding effect in the context of an action for damages such as that in the main proceedings. The referring court may therefore rely on that decision for the purpose of establishing the existence and the duration of the infringement alleged to have caused the harm at issue. This is without prejudice to the right of that court to stay the proceedings before it if it considers it appropriate to do so given the circumstances of the particular case.
B. First and second questions referred for a preliminary ruling: the implications of the findings in the judgment in Volvo for the present case
71. By its first and second questions referred for a preliminary ruling, the referring court asks to what extent Article 10 of Directive 2014/104, which concerns limitation periods, is applicable to the dispute in the main proceedings. The answer to those questions stems from the findings of the Court in the judgment in Volvo. Even though the referring court has withdrawn the questions, the implications of that judgment for the present case must be clarified in order to provide that court with a useful answer.
72. Under Article 22(1) of Directive 2014/104, Member States are to ensure that the national measures adopted in order to comply with substantive provisions of that directive do not apply retroactively.
73. According to the judgment in Volvo, Article 10 of Directive 2014/104 is a substantive provision within the meaning of Article 22(1) of that directive. (29)
74. In order to determine the temporal applicability of Article 10 of Directive 2014/104, it is therefore necessary to ascertain whether the situation at issue arose before the expiry of the time limit for transposition of that directive or whether it continues to produce effects after the expiry of that time limit. (30)
75. To that end, it is necessary to ascertain whether, on the date of expiry of the time limit for transposition of Directive 2014/104, namely 27 December 2016, the limitation period applicable to the situation at issue in the main proceedings had elapsed, which means determining the time when that limitation period began to run. (31)
76. Here, Heureka claims compensation for the harm it allegedly suffered on account of the abuse of a dominant position in which Google, according to Decision C(2017) 4444 final, had engaged over the period from February 2013 to 27 June 2017.
77. In those circumstances, a distinction must be drawn between the period of the infringement which occurred after the time limit for transposition of Directive 2014/104 had expired (Section 1 below) and that which took place before the expiry of that time limit (Section 2 below).
1. The period of the infringement which occurred after the time limit for transposition of Directive 2014/104 had expired
78. The part of the infringement which occurred after the expiry of the time limit for transposition of Directive 2014/104, that is to say, from 27 December 2016 to 27 June 2017, falls within the temporal scope of Article 10 of that directive.
79. In addition, from the expiry of the time limit for transposition, the national court must, so far as possible, interpret national law in the light of EU law, without, however, interpreting those national provisions contra legem. (32)
80. In that regard, according to the explanations provided by the referring court, it is the case-law of the Czech Supreme Court which interprets ‘knowledge of the harm’, a requirement under the Civil Code to determine the starting point of the limitation period, as meaning that, for the purpose of the starting point of a subjective limitation period, knowledge of even just a partial occurrence of harm caused by a continuing infringement of competition law is relevant.
81. However, the obligation to interpret national law in conformity with EU law requires national courts to change established case-law, where necessary, if it is based on an interpretation of domestic law that is incompatible with the objectives of EU law. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law. (33)
82. In accordance with those criteria, subject to verification by the referring court, it does not appear impossible to interpret national law in conformity with the requirements of EU law.
83. It follows that, in relation to the harm caused during that part of the infringement, the limitation period cannot have begun to run before the conditions laid down in Article 10 of Directive 2014/104 are met, namely, in particular, that the infringement has ceased and the claimant has become aware of the key elements of that infringement.
84. According to the judgment in Volvo, while it cannot be ruled out that the elements necessary for bringing an action for damages may be known to the injured party well before the publication in the Official Journal of the European Union of the summary of a Commission decision, it is, in the absence of other indications, from that time onwards that it can reasonably be considered that the injured party knew of the elements necessary for it to bring its action. (34)
85. However, in the present case, Google argues that Heureka was already aware of the key elements of the infringement before the publication of the summary of Decision C(2017) 4444 final in the Official Journal on 12 January 2018. It is for the referring court to determine whether that is the case. In any event, even in that situation, the limitation period for the period of the infringement which occurred after the time limit for transposition of Directive 2014/104 had expired on 27 December 2016 cannot have begun to run before the end of that infringement. According to Decision C(2017) 4444 final, the end date was 27 June 2017. There is, however, nothing to prevent the referring court from concluding, where appropriate, that that infringement went on for longer than was found in Decision C(2017) 4444 final, provided that that fact is duly proven. (35)
86. In that context, it is worth pointing out that there can be no doubt that the time at which ‘the infringement ceased’, within the meaning of Article 10(2) of Directive 2014/104, can only be, where the same single and continuous infringement extends over a particular period of time, when the same single and continuous infringement ceases entirely.
87. It is true that that point is not stated explicitly in that provision, unlike, as the referring court observes, what was contained in the Commission’s initial proposal. (36)
88. However, rather than intending to reverse that meaning, that change appears to simplify the wording of the provision. After all, the time at which an infringement ‘ceases’ can, in the case of a single and continuous infringement, only be the time at which it ends entirely. Otherwise, reference would have to have been made to the time when the infringement ‘is committed’, as in Article 25(2) of Regulation No 1/2003, which states that ‘time shall begin to run on the day on which the infringement is committed’, save ‘in the case of continuing or repeated infringements, [in relation to which] time shall begin to run on the day on which the infringement ceases’.
89. Furthermore, Article 2(1) of Directive 2014/104 defines an ‘infringement of competition law’ as ‘an infringement of Article 101 or 102 [TFEU], or of national competition law’, which argues in favour of interpreting the concept of an infringement for the purpose of applying the directive on the basis of the case-law relating to those provisions. In accordance with that case-law, where a series of acts or continuous conduct form part of an overall plan because their identical object distorts competition, this constitutes a single and continuous infringement (37) (or, as the case may be, a single and repeated infringement (38)). That concept allows the Commission to impose a fine in respect of the whole of the period of infringement taken into consideration and establishes the date on which the limitation period begins to run, namely the date on which the continuous infringement ceased. (39)
90. In the present case, it follows from Decision C(2017) 4444 final that the infringement began, in the Czech Republic, in February 2013 and that it was continuing as at the adoption of that decision (point 21 above). It is true that the Commission did not explicitly classify that infringement as a ‘single and continuous infringement’ within the meaning of the case-law just cited. This is undoubtedly because that concept is primarily used to demonstrate the unity and the continuity of infringements of Article 101 TFEU committed by a number of undertakings and involving several elements.
91. However, here, it appears clear, without it being necessary to make explicit use of that concept, that the infringement of Article 102 TFEU, committed by a single undertaking, consisted in continuous conduct pursuing a single objective and economic goal, namely the more favourable positioning and display reserved by Google in its general search results pages for its own comparison shopping service in order to increase traffic to that comparison service to the detriment of competing comparison shopping services. (40) The end of the infringement can therefore only be the time at which this continuous conduct ceased in its entirety.
92. In summary, as far as concerns the period after the time limit for transposition of Directive 2014/104 expired on 27 December 2016, the limitation period cannot have begun to run before the end of the infringement as found by the Commission, that is to say, on 27 June 2017, unless the referring court finds that the infringement ceased at a later date.
2. The period of the infringement which took place before the expiry of the time limit for transposition of Directive 2014/104
93. By contrast, as regards the period of the infringement which took place before the expiry of the time limit for transposition of Directive 2014/104, that is to say the period between February 2013 and 27 December 2016, the dies a quo of the limitation period is determined by the rules of national law. (41)
94. As I have stated, inter alia, in points 42 and 43 above, according to the information provided by the referring court, prior to the transposition of Directive 2014/104, the three-year limitation period provided for in the Czech Civil Code began to run as soon as the injured party knew of the harm and the person who caused it, without it being necessary, according to national case-law, to wait until the end of an infringement such as that at issue in the present case. The harm caused by such an infringement was deemed to be divisible and different limitation periods therefore began to run gradually. In accordance with that case-law, part of Heureka’s right to compensation would have already become time-barred before the time limit for transposition of Directive 2014/104 expired.
95. Nevertheless, in order to determine whether those national rules can apply as such to the part of the harm claimed by Heureka corresponding to the period before the time limit for transposition of Directive 2014/104 expired, it is necessary to examine whether the law as it then stood is compatible with EU law. Even before Directive 2014/104, it already followed directly from Article 102 TFEU, read in conjunction with the principle of effectiveness, that the rules applicable to actions for safeguarding rights which individuals derive from EU competition law must not make it in practice impossible or excessively difficult to exercise those rights. (42) The question raised is therefore whether, under those rules, even before Directive 2014/104, the limitation period for bringing an action for damages for an infringement of competition law should not have begun to run before such an infringement had ceased.
C. Third and fourth questions referred for a preliminary ruling: the requirements arising from EU law for the rules on limitation predating the directive
96. This question of the requirements arising from EU law relating, inter alia, to the beginning of the limitation period before Directive 2014/104 was adopted corresponds, in essence, to the third question referred for a preliminary ruling and to point (i) of the fourth question referred (Section 1 below). The remaining points of the fourth question referred for a preliminary ruling will become relevant only if it emerges, having examined the abovementioned question, that EU law predating the directive did not require the infringement to have ceased for the limitation period to begin running (Sections 2 and 3 below).
1. Can the limitation period begin to run before the infringement ceases? (Third question and point (i) of the fourth question)
97. In paragraph 50 et seq., in particular in paragraphs 56 and 61, of the judgment in Volvo, the Court found, in relation to a situation governed by national law predating the directive, that the limitation periods laid down in that national law cannot begin to run before the infringement has ceased.
98. Similarly, in paragraphs 78 and 79 of the judgment in Manfredi and Others, (43) the Court held that a national rule under which the limitation period for bringing an action for damages runs from the day on which the agreement or concerted practice was adopted could make it practically impossible to exercise the right to seek compensation for the harm caused by that prohibited agreement or practice, particularly if that national rule also imposes a short limitation period which is not capable of being suspended. According to the Court, in such a situation, where there are continuous or repeated infringements, it is possible that the limitation period expires even before the infringement is brought to an end, in which case it would be impossible for any individual who has suffered harm after the expiry of the limitation period to bring an action.
99. However, Google and the Commission take the view that those findings cannot be transposed in the context of the present case. Thus, unlike in the judgment in Manfredi and Others, here, the limitation period, even each divisible limitation period, could not have begun to run before the corresponding knowledge was acquired. The risk of the period expiring even before an injured party could seek compensation cannot therefore arise.
100. In addition, the infringement at issue in the judgment in Volvo was a secret cartel, of which the claimant in that case knew in any event only after the infringement had ceased. The condition that the infringement must have ceased in order for the limitation period to begin to run was therefore of no real significance to the resolution of the dispute in the case.
101. By contrast, in the present case, the infringement allegedly consisted in public conduct by a known person. In addition, the limitation period did not begin to run until the injured party knew of those elements and that period was sufficiently lengthy. Accordingly, it does not appear crucial to the exercise of the right to compensation that the starting point of the limitation period is also conditional upon the infringement having ceased. It is entirely possible for the injured party to adjust the amount of its claims as time passes and harm accumulates.
102. After all, in accordance with the Court’s findings in Cogeco Communications, (44) consideration must be given to the rules on limitation as a whole in order to determine whether the various elements of those rules, when assessed together, make it actually impossible or excessively difficult to exercise the right to compensation. This is not the case here.
103. Lastly, prior to the transposition of Directive 2014/104, none of the legal systems of the Member States made the starting point of the limitation period for an infringement of competition law conditional upon the infringement having ceased. That directive established an entirely new legal reality in that regard, the requirements of which cannot be equated with those, previously in force, under the principle of effectiveness. Imposing such a condition before the implementation of the directive would risk conferring on that directive a horizontal direct effect between individuals, which would run counter to well-established case-law. (45)
104. That line of argument cannot however be accepted.
105. It is admittedly possible for the concept of an ongoing infringement, which occurs and becomes time-barred gradually over time, to exist in the civil laws of the Member States. In the same way, the non-contractual liability of the European Union is subject to gradual limitation periods over time where the harm caused is continuing. (46)
106. However, an action for damages for an infringement of competition law such as that at issue in the main proceedings is structurally different from a traditional civil action for non-contractual liability.
107. First of all, it is based on a right arising from the full effectiveness of Articles 101 and 102 TFEU which is capable not only of providing a remedy for the direct damage alleged to have been suffered by the person in question, but also for the indirect harm done to the structure and operation of the market, which was not able to reach full economic efficacy, in particular as regards benefits to the consumers concerned. (47) Actions for damages for infringement of EU competition rules are an integral part of the system of enforcement of those rules. (48) By enforcing its right to seek compensation, the injured party contributes to the achievement of EU objectives and thus becomes a ‘defender’ or ‘enforcer’ of EU interests. (49)
108. Where such an action for enforcement of competition rules brought privately (private enforcement) is based on an infringement of Article 101 or 102 TFEU, the concept of infringement, which constitutes an autonomous concept of EU law, cannot have a different scope from that which it has in the context of the enforcement of EU competition rules by public authorities (public enforcement). (50) The infringement upon which the action for compensation is based is therefore determined by EU law.
109. Next, for actions for damages for infringement of competition law to be brought, a complex factual and economic analysis must, in principle, be carried out. (51) In addition, the situation is regularly characterised by information asymmetry to the detriment of the injured party. (52) Accordingly, national legislation laying down the date on which the limitation period begins to run, the duration of that period and the rules for its suspension or interruption must be adapted to the specificities of competition law. (53)
110. In that regard, there are indeed infringements of competition law which can be triggered immediately, by a single act, such as a call for a boycott or a single incidence of contractual discrimination by a dominant undertaking.
111. However, as the referring court rightly observes, an abuse of a dominant position such as that in question in the present case consists solely of the conduct as a whole, the extent, duration, intensity and method of execution of which resulted, or could have resulted, in a substantial distortion of the conditions of competition or an anticompetitive effect.
112. Just as in the case of a complex and continuous infringement of Article 101 TFEU, it would therefore be artificial to seek to ‘divide up’ the infringement and the limitation period for such an infringement of Article 102 TFEU which also satisfies, as I have noted in points 90 and 91 above, the criteria for a single and continuous infringement of competition law.
113. Similarly, it is essential that the limitation period not be allowed to elapse before the infringement has ceased in order to protect the right of the injured parties to be compensated in full for the harm suffered, which is part of the body of case-law established prior to the directive. (54)
114. As Heureka argues in the present case, in the digital sector in particular, an infringement can have an impact at several levels (traders, advertisers, users) and alter the structure of the market. An infringement in that field and the harm arising therefrom are very difficult to establish before the infringement has ceased, and the requirement to bring an action and then to amend it gradually by increasing the harm claimed therefore makes it excessively difficult if not practically impossible for that right to full compensation to be exercised.
115. It also follows from the case-law of the Court that EU law predating the directive already required that limitation periods do not begin to run before the injured parties know of the elements necessary to bring their action, which include, inter alia, the existence of an infringement of competition law and the existence of harm. (55) Such knowledge appears very difficult to assume before a complex infringement of competition law has ceased.
116. Accordingly, enforcing a limitation period in respect of an injured party solely on the basis of that party’s alleged knowledge of the infringement is a source of legal uncertainty. By contrast, the two-fold requirement of knowledge of the infringement and the end of that infringement allows the starting point of the limitation period to be determined precisely and reliably, in particular in the case of actions further to a decision of a competition authority, in the interest of the injured party and also of the infringer.
117. Conversely, it would be cynical to enforce a limitation period as against an injured party whilst the infringement is still ongoing. Furthermore, the risk of their knowledge of the infringement being prematurely raised against them could even cause injured parties to hesitate to report an infringement to the Commission or to a competition authority and thus impair the effective enforcement of competition law.
118. Moreover, the requirement that the infringement has ceased for the limitation period to begin to run may also result in the infringer bringing the infringement in question to an end sooner so that that period can run as quickly as possible. By contrast, rules which allow the limitation period to be divided up into several successive dies a quo assure the infringer that it risks continually being ordered to compensate only for a small part of the infringement, corresponding to the duration of the limitation period, and do not therefore encourage the infringer to put an end to the infringement.
119. Contrary to what the Commission argued at the hearing in the context of these proceedings, nor does requiring that the two-fold condition of knowledge of the infringement and the end of that infringement is met in order for the limitation period to begin to run encourage the injured party to remain inactive despite its knowledge of the infringement, thereby contributing to harm being caused. It is entirely possible for account to be taken, where appropriate, of such inaction that is at odds with the principle of good faith when calculating the compensation. However, such a factor cannot be taken account of when determining the starting point of the limitation period.
120. An exception to the condition that the infringement has ceased for the limitation period to begin to run appears conceivable only to a very limited degree, inter alia where the national law predating the directive ensures that the limitation period does not expire before the infringement ends as a result of other provisions, applying, for example, rules on the suspension or interruption of that period until the date on which the infringement decision becomes final. Even in such a scenario, the national court must ascertain that there is enough time left for the injured party to prepare and bring its action after the final decision. (56)
121. As the injured party pursues its subjective right to compensation, it is justified for that party to benefit from a subjective limitation period which cannot begin to run before it knows of the elements necessary for it to bring its action. As such, the injured party differs from the Commission, which exercises its objective powers and in whose view only an objective limitation period runs, pursuant to Article 25(2) of Regulation No 1/2003, from the time when the infringement is committed or has ceased.
122. However, pursuant to Article 2 of Regulation No 1/2003, the injured party finds itself in the same position as the Commission as regards the burden of proving the infringement which it claims. Accordingly, there is no justification for placing that party in a less favourable position than the Commission as regards using the end of the infringement as a criterion for the limitation period beginning to run. This is especially the case inasmuch as that party does not have the Commission’s powers or investigatory tools to establish the existence of the infringement, (57) but rather is dependent in practice on the Commission’s decision.
123. It follows from those considerations that, to enable the effective exercise of the right to compensation and thus to satisfy the objectives of the enforcement of the rules of competition law by injured parties, the limitation period for bringing an action for damages must not begin to run before such an infringement has ended.
124. Contrary to the arguments put forward by the Commission and Google, the ratio underlying the judgments in Volvo and Manfredi and Others (58) is therefore perfectly transposable to the present case. Accordingly, the third question and point (i) of the fourth question should be answered to the effect that Article 102 TFEU, read in conjunction with the principle of effectiveness, precludes national legislation which allows the limitation period for the right to compensation for harm caused by anticompetitive conduct to begin to run before that conduct ceases entirely.
125. This means that, in the situation at issue in the main proceedings, the limitation period could not have begun to run before the end of the infringement, that is to say that it could begin to run on 27 June 2017 at the earliest (point 85 above). It follows that that period had not expired before the expiry of the time limit for transposition of Directive 2014/104 on 27 December 2016. In those circumstances, the situation at issue in the main proceedings had not arisen before the time limit for transposition of that directive expired, but rather continued to produce effects after the expiry of that time limit, such that Article 10 of the directive is applicable to that situation (points 74 and 75 above).
2. Can the limitation period begin to run before the injured party knows that the conduct constitutes an infringement of competition rules? (Point (ii) of the fourth question)
126. By point (ii) of the fourth question referred for a preliminary ruling, the referring court asks whether Article 102 TFEU and the principle of effectiveness preclude national legislation which does not link the time at which the limitation period begins to run to knowledge of the fact that the conduct at issue constitutes an infringement of competition rules, as now provided for in Article 10(2)(a) of Directive 2014/104. That question does not arise here if my answer to the third question and to point (i) of the fourth question is applied, namely that the limitation period does not begin to run in any case before the infringement has ceased entirely. I will therefore set out my view on point (ii) of the fourth question only in the alternative.
127. The principle of effectiveness requires that the limitation periods applicable to actions for damages for infringements of the provisions of competition law of the Member States and of the European Union do not begin to run before the injured party knows, or can reasonably be expected to know, the information necessary to bring its action for damages. That information includes the existence of an infringement of competition law, the existence of harm, the causal link between that harm and that infringement, and the identity of the perpetrator of the infringement. (59)
128. As Advocate General Rantos has explained, in that context, establishing the time at which the injured party knows of ‘the existence of the infringement’, meaning the legal classification of the conduct at issue, is a source of legal uncertainty. It would therefore be judicious to start by assuming that, in the context of ‘follow-on’ actions, brought further to a decision of the Commission or of a national competition authority, (60) it can reasonably be considered, in the absence of other indications, that knowledge of the elements necessary to bring the action is acquired upon publication of the summary of the Commission decision in the Official Journal (or the equivalent in the case of a decision of a national competition authority). (61)
129. By contrast, in ‘stand-alone’ actions, where there is no prior decision by a competition authority, (62) no such public point of reference for that knowledge exists, and it is ultimately for the national court to establish when the injured party knew of ‘the existence of the infringement’ simply on the basis of the information provided by the defendant. In that regard, it cannot be required that the legal characterisation of the facts as an infringement of competition law is free from all doubt, which is generally difficult before such an infringement is established by an administrative or judicial decision. Nevertheless, conversely, knowledge merely of isolated facts or information, which could raise suspicions of an infringement of competition law, cannot be enough to establish the injured party’s knowledge of the existence of the infringement. There must be a body of precise and consistent evidence on the basis of which it can be assumed that a diligent party could not reasonably have been unaware that the facts known to it, or which could have be known to it, equated to an infringement of competition law.
130. In that context, it is indeed true that distinguishing, as regards the duty of due diligence, between undertakings with legal advisers and ‘professional consumers’, on the one hand, and ‘ordinary consumers’, on the other hand, further increases the legal uncertainty. (63) However, it appears justified that, when assessing the injured party’s knowledge of the existence of the infringement and its duty of due diligence in that regard, the referring court takes that difference into account. It also appears that account may be taken of the fact that some infringements such as agreements on prices between direct competitors can more easily be classified as running counter to competition rules than other conduct, in particular conduct occurring on new markets which are less familiar to and less analysed by competition authorities.
131. On the basis of those considerations, point (ii) of the fourth question referred for a preliminary ruling should be answered to the effect that, pursuant to Article 102 TFEU, read in conjunction with the principle of effectiveness, the limitation periods applicable to actions for damages for infringements of the competition law provisions of the Member States and of the European Union must not begin to run before the injured party knows, or can be reasonably expected to know, the information necessary to bring its action for damages, including the existence of an infringement of competition law. Where such an action follows on from a decision of a competition authority, such knowledge can, in the absence of other indications, reasonably be regarded as acquired, subject to verification by the national court, from the official publication of the summary of that decision. In the absence of such a decision, knowledge of the existence of the infringement cannot be established unless there is a precise and consistent body of evidence on the basis of which it can be assumed that a diligent party could not reasonably have been unaware that the facts known to it, or which could have been known to it, equated to an infringement of competition law.
3. Must the limitation period be suspended for the duration of the procedure before the Commission and the judicial review of the Commission’s decision? (Points (iii) and (iv) of the fourth question)
132. By points (iii) and (iv) of its fourth question referred for a preliminary ruling, the referring court asks whether Article 102 TFEU, read in conjunction with the principle of effectiveness, precludes national legislation which neither suspends nor interrupts the limitation period for an infringement of competition law for the duration of the procedure before the Commission relating to that offence, which is still ongoing, and which does not contain any rule that the suspension of the limitation period is to end no earlier than one year after the infringement decision has become final.
133. As with point (ii) of the fourth question, this issue does not arise, in the present case, if my answer to the third question and to point (i) of the fourth question is applied. I will therefore set out my view on points (iii) and (iv) of the fourth question only in the alternative.
134. In order to determine whether national rules on limitation make it excessively difficult if not practically impossible to exercise the right to a legal remedy, the national rules on limitation must be assessed as a whole. Individual elements of those rules must not therefore be examined in isolation. (64) The possibility of suspending the period for the duration of the procedure before the Commission and the judicial review of its decision is just one of those elements.
135. As the Commission argues, the reason for suspending the limitation period lies in the fact that the claimant should be able to await the outcome of the competition authority’s investigation and, as the case may be, that of the judicial review of that authority’s decision. This will allow the claimant to assess whether an infringement of competition law has been committed, to learn the scope and the duration of any infringement, and to rely on that finding in the context of a subsequent action for damages.
136. In Cogeco Communications, the Court thus found that the exercise of the right to a legal remedy is made excessively difficult if not practically impossible if a limitation period, which begins to run before the completion of the proceedings following which a final decision is made by the national competition authority or by a review court, is too short in relation to the duration of those proceedings and can be neither suspended nor interrupted during the course of such proceedings, with the result that it is not inconceivable that that limitation period may expire even before those proceedings are completed, thereby preventing the injured party from bringing an action based on such a decision. (65)
137. It follows from that case-law that the injured party must be able to base its action on the decision of a competition authority relating to the infringement of EU competition rules concerned. The automatic suspension or interruption of the limitation period during the course of the competition authority’s proceedings can be one tool to that end. However, in national systems, it appears that there may also be other ways of ensuring that the injured party can base its action on the infringement decision.
138. Points (iii) and (iv) of the fourth question referred for a preliminary ruling should therefore be answered to the effect that Article 102 TFEU, read in conjunction with the principle of effectiveness, does not preclude rules on limitation governing actions for damages for infringements of competition law which neither suspend nor interrupt the limitation period automatically for the duration of the procedure before the competition authority or the judicial review of such an authority’s decision. However, Article 102 TFEU, read in conjunction with the principle of effectiveness, does require that the national rules on limitation allow the injured party to base its action on the decision of a competition authority relating to the infringement of EU competition rules concerned.
VI. Conclusion
139. In the light of those considerations, I suggest that the Court reply to the request for a preliminary ruling from the Městský soud v Praze (Prague City Court, Czech Republic) as follows:
(1) In order to determine the temporal applicability of Article 10 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, it is necessary to ascertain whether the situation at issue arose before the expiry of the time limit for transposition of that directive or whether it continues to produce effects after the expiry of that time limit. To that end, it is necessary to ascertain whether, on the date of expiry of the time limit for transposition of Directive 2014/104, the limitation period applicable to the situation at issue in the main proceedings had elapsed, which means determining the time when that limitation period began to run. Over the period prior to the expiry of the time limit for transposition of Directive 2014/104, the starting point of the limitation period is determined in accordance with national law.
(2) Article 102 TFEU, read in conjunction with the principle of effectiveness, precludes national legislation which allows the limitation period for the right to compensation for harm caused by anticompetitive conduct to begin to run before that conduct ceases entirely.
(3) Pursuant to Article 102 TFEU, read in conjunction with the principle of effectiveness, the limitation periods applicable to actions for damages for infringements of the competition law provisions of the Member States and of the European Union must not begin to run before the injured party knows, or can be reasonably expected to know, the information necessary to bring its action for damages, including the existence of an infringement of competition law. Where such an action follows on from a decision of a competition authority, such knowledge can, in the absence of other indications, reasonably be regarded as acquired, subject to verification by the national court, from the official publication of the summary of that decision. In the absence of such a decision, knowledge of the existence of the infringement cannot be established unless there is a precise and consistent body of evidence on the basis of which it can be assumed that a diligent party could not reasonably have been unaware that the facts known to it, or which could have been known to it, equated to an infringement of competition law.
(4) Article 102 TFEU, read in conjunction with the principle of effectiveness, does not preclude rules on limitation governing actions for damages for infringements of competition law which neither suspend nor interrupt the limitation period automatically for the duration of the procedure before the competition authority or the judicial review of such an authority’s decision. However, Article 102 TFEU, read in conjunction with the principle of effectiveness, does require that the national rules on limitation allow the injured party to base its action on the decision of a competition authority relating to the infringement of EU competition rules concerned.