OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 22 September 2022 (1)
Case C‑312/21
Tráficos Manuel Ferrer SL,
Ignacio
v
Daimler AG
(Request for a preliminary ruling
from the Juzgado de lo Mercantil n° 3 de Valencia (Commercial Court No 3, Valencia, Spain))
(Reference for a preliminary ruling – Competition – Antitrust law – Private enforcement – ‘Truck cartel’ – Article 101 TFEU – Principle of effectiveness – Directive 2014/104/EU – National rules on the allocation of the costs of the proceedings – Information asymmetries – Impossibility or unreasonable difficulties in quantifying harm – Estimation of the amount of harm)
I. Introduction
1. Is it reasonable for a claimant seeking antitrust damages to be required to pay half of the costs of the proceedings where he or she is successful in part, or does this unduly impair the enforcement of the right to antitrust damages? And may a national court estimate the amount of harm caused by the cartel where the claimants had access to the data on which the defendant’s expert report regarding damage was based and where the claim for damages also relates to goods which the claimants acquired not from the defendant but from other cartel participants?
2. Those are, in essence, the questions referred to the Court in the present request for a preliminary ruling. They arise against the background of the ‘truck cartel’, which has led to numerous actions for damages, particularly in Spain, and which the Court has been required or will be required to address in other proceedings. (2)
3. The questions in the present case are related to the well-known fundamental problems surrounding antitrust damages, which consist, in particular, in the information asymmetry between the injured parties and the cartel participants and in the difficulties in providing evidence of the existence of the harm suffered and in quantifying such harm. 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 (‘Directive 2014/104’ or ‘the directive’) (3) is intended to address those problems. The relevant provisions of that directive are applicable in the present case and can therefore be taken as the basis for answering the questions referred.
II. Legal framework
A. European Union law
4. The framework of the present case in EU law is formed by Directive 2014/104, in addition to Article 101 TFEU.
5. Recitals 14 and 15 of Directive 2014/104 concern evidentiary difficulties in private proceedings for antitrust damages:
‘(14) Actions for damages for infringements of Union or national competition law typically require a complex factual and economic analysis. The evidence necessary to prove a claim for damages is often held exclusively by the opposing party or by third parties, and is not sufficiently known by, or accessible to, the claimant. In such circumstances, strict legal requirements for claimants to assert in detail all the facts of their case at the beginning of an action and to proffer precisely specified items of supporting evidence can unduly impede the effective exercise of the right to compensation guaranteed by the TFEU.
(15) Evidence is an important element for bringing actions for damages for infringement of Union or national competition law. However, as competition law litigation is characterised by an information asymmetry, it is appropriate to ensure that claimants are afforded the right to obtain the disclosure of evidence relevant to their claim, without it being necessary for them to specify individual items of evidence. In order to ensure equality of arms, those means should also be available to defendants in actions for damages, so that they can request the disclosure of evidence by those claimants. National courts should also be able to order that evidence be disclosed by third parties, including public authorities. …’
6. Recitals 45 and 46 of Directive 2014/104 explain the problem of quantifying the amount of individual harm caused by a cartel:
‘(45) An injured party who has proven having suffered harm as a result of a competition law infringement still needs to prove the extent of the harm in order to obtain damages. Quantifying harm in competition law cases is a very fact-intensive process and may require the application of complex economic models. This is often very costly, and claimants have difficulties in obtaining the data necessary to substantiate their claims. The quantification of harm in competition law cases can thus constitute a substantial barrier preventing effective claims for compensation.
(46) In the absence of Union rules on the quantification of harm caused by a competition law infringement, it is for the domestic legal system of each Member State to determine its own rules on quantifying harm, and for the Member States and for the national courts to determine what requirements the claimant has to meet when proving the amount of the harm suffered, the methods that can be used in quantifying the amount, and the consequences of not being able to fully meet those requirements. However, the requirements of national law regarding the quantification of harm in competition law cases should not be less favourable than those governing similar domestic actions (principle of equivalence), nor should they render the exercise of the Union right to damages practically impossible or excessively difficult (principle of effectiveness). Regard should be had to any information asymmetries between the parties and to the fact that quantifying the harm means assessing how the market in question would have evolved had there been no infringement. This assessment implies a comparison with a situation which is by definition hypothetical and can thus never be made with complete accuracy. It is therefore appropriate to ensure that national courts have the power to estimate the amount of the harm caused by the competition law infringement. …’
7. Article 5(1) of Directive 2014/104 governs the ordering of the disclosure of evidence by the court:
‘Member States shall ensure that in proceedings relating to an action for damages in the Union, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order the defendant or a third party to disclose relevant evidence which lies in their control, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are able, upon request of the defendant, to order the claimant or a third party to disclose relevant evidence.’
8. Article 17 of Directive 2014/104 is entitled ‘Quantification of harm’ and provides as follows in paragraph 1:
‘Member States shall ensure that neither the burden nor the standard of proof required for the quantification of harm renders the exercise of the right to damages practically impossible or excessively difficult. Member States shall ensure that the national courts are empowered, in accordance with national procedures, to estimate the amount of harm if it is established that a claimant suffered harm but it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available.’
9. Article 22 of Directive 2014/104 regulates the temporal applicability of the directive:
‘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
10. Article 394(1) and (2) of Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on Civil Procedure; ‘the LEC’) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575) provides, in the version applicable to the present case, as follows:
‘1. In proceedings for declaratory relief, the costs of the proceedings at first instance shall be awarded against the party all of whose claims have been dismissed, unless the court finds, and gives reasons for finding, that the case exhibited serious doubts of fact or law.
…
2. Where the heads of claim are upheld or dismissed only in part, each party shall pay the costs it has itself incurred as well as half of the common costs, unless there are grounds for awarding costs against one party for vexatious litigation.’
11. In order to transpose Directive 2014/104 into Spanish law, 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 No 9/2017 transposing European Union directives in the fields of finance, business and health, and on the posting of workers) of 26 May 2017 (BOE No 126 of 27 May 2017, p. 42820) entered into force on 27 May 2017, that is to say five months after the expiry of the deadline for transposing Directive 2014/104, on 27 December 2016.
12. The transposition of Directive 2014/104 has led, inter alia, to the introduction of Article 283bis of the LEC, which corresponds to Article 5 of the directive.
III. The dispute in the main proceedings
13. On 11 October 2019, Mr Ignacio and the Spanish company Tráficos Manuel Ferrer, SL (‘the applicants’) brought a civil action for damages against Daimler AG (‘Daimler’ or ‘the defendant’) on the basis of Article 101 TFEU and Article 1902 of the Spanish Civil Code.
14. The background to that action is the defendant’s infringement of competition law in the form of a concerted practice with other European truck manufacturers in the years 1997 to 2011 (referred to as the ‘truck cartel’), as established in the Commission’s decision of 19 July 2016. (4) Those practices consisted of collusive arrangements intended to fix and increase gross prices for certain types of trucks and to pass on costs for introducing new technologies for preventing polluting emissions.
15. In support of their action, the applicants state that, for the duration of the cartel, they purchased Mercedes-, Renault- and Iveco-branded trucks which were affected by the conduct of the truck manufacturers penalised by the Commission. The Mercedes-branded truck is manufactured by the defendant in the main proceedings.
16. The applicants claim that, as a consequence of the defendant’s anticompetitive price-fixing, they suffered harm in the form of surcharges on the vehicles purchased. They submit that this is proven by an expert report which they submitted and which quantifies the harm suffered. The defendant challenged that expert report by way of its own expert report, which stated that the grounds, assumptions and methodology of the applicants’ report are incorrect. The defendant then granted the applicants access to all data taken into consideration in its expert report. The applicants then filed another ‘technical report’ on the results obtained through access to the defendant’s data, but they did not re-draft their own expert report.
17. Furthermore, an application made by the defendant for the compulsory intervention of Renault Trucks SAS and Iveco SPA (manufacturers of the other trucks purchased by the applicants) in the proceedings was refused by the court on the ground that the statutory conditions were not met, and the conduct of the proceedings continued with Daimler as sole defendant.
IV. Request for a preliminary ruling and procedure before the Court
18. Against that background, the Juzgado de lo Mercantil n° 3 de Valencia (Commercial Court No 3, Valencia, Spain) decided to stay the proceedings and, by decision of 10 May 2021, received on 19 May 2021, referred the following questions to the Court for a preliminary ruling:
‘(1) Are the rules laid down in Article 394(2) of the LEC, pursuant to which an injured party is to bear a portion of the costs of the proceedings based on the amount of the sums wrongly paid as a surcharge which are returned to him or her after his or her claim for damages is upheld in part, where, as a premiss for a declaration, it is assumed that there is an infringement of competition law and that that infringement has a causal link to the harm suffered, which is indeed verified, quantified and awarded as a result of the proceedings, compatible with the right to full compensation of a person harmed by anticompetitive conduct, as referred to in Article 101 TFEU and in accordance with the case-law interpreting it?
(2) Does the power of the national court to estimate the amount of damages enable those damages to be quantified in the alternative and independently, on the grounds that a situation of information asymmetry or insoluble difficulties regarding quantification have been identified which must not impede the right to full compensation of the person harmed by an anticompetitive practice as referred to in Article 101 TFEU, in conjunction with Article 47 of the [Charter of Fundamental Rights of the European Union (“the Charter”)], including where the person harmed by an infringement of competition law consisting of a cartel generating a surcharge has had access during the course of the proceedings to the data on which the defendant based his or her expert report for the purpose of denying the existence of damage eligible for compensation?
(3) Does the power of the national court to estimate the amount of damages enable those damages to be quantified in the alternative and independently, on the grounds that a situation of information asymmetry or insoluble difficulties regarding quantification have been identified which must not impede the right to full compensation of the person harmed by an anticompetitive practice as referred to in Article 101 TFEU, in conjunction with Article 47 of the Charter, including where the person harmed by an infringement of competition law consisting of a cartel generating a surcharge brings his or her claim for damages against one of the addressees of the administrative decision, who is jointly and severally liable for those damages but who did not sell the product or service acquired by the injured party in question?’
19. The applicants, Daimler, the Kingdom of Spain and the European Commission submitted written observations in the proceedings before the Court.
V. Assessment
20. Before assessing the content of the request for a preliminary ruling (B), it is necessary to address the Kingdom of Spain’s objections with regard to its admissibility (A).
A. Admissibility of the request for a preliminary ruling
21. The Kingdom of Spain contests both the jurisdiction of the Court to answer the questions referred (1) and their admissibility (2).
1. The jurisdiction of the Court
22. First, the Kingdom of Spain submits that the Court does not have jurisdiction to answer the first question referred, since that question does not come within the scope of EU law. It further submits that Article 394(2) of the LEC regulates, in a general manner, the allocation of costs in litigation and does not transpose any provisions of EU law. The fact that the dispute substantively concerns EU law does not change this, as Article 101 TFEU cannot have any effect on the regulation of costs in national law.
23. That objection has no prospect of success.
24. Accordingly, it is true that, in the absence of harmonisation of the law of civil procedure under EU law, regulation of the enforcement of civil-law claims is a matter for the national legal systems of the Member States, in accordance with the principle of procedural autonomy. (5) Moreover, Directive 2014/104 also does not contain any specific provision on the allocation of costs.
25. However, the detailed procedural rules which are designed to ensure the protection of the rights which individuals acquire under EU law, even though they are a matter for the domestic legal system of each Member State, under the principle of the procedural autonomy, come within the scope of EU law in so far as they must comply with the principles of equivalence and effectiveness. (6) Therefore, the Court has jurisdiction to provide the referring court with guidance in order to enable it to determine whether the national rules concerned are consistent with those principles. (7)
26. Since the main proceedings concern claims for damages based on Article 101 TFEU, the action in the main proceedings serves to enforce claims under EU law, and the detailed rules for enforcing those claims laid down in national law must be measured against the principles of equivalence and effectiveness under EU law. The legal situation in the main proceedings is therefore covered by EU law. (8)
27. Second, the Kingdom of Spain submits that the Court also lacks jurisdiction to answer the second and third questions referred, since it is for the referring court alone to interpret the national provisions on the taking of evidence and to assess whether information asymmetry exists between the parties in the present case and whether the possibilities for taking evidence have been sufficiently exhausted.
28. That objection also cannot be accepted. The second and third questions referred also concern the requirements of EU law with regard to the effectiveness of the enforcement of the right to compensation deriving from Article 101 TFEU. In addition, the second and third questions referred concern the interpretation of Article 17(1) of Directive 2014/104, which, contrary to the Kingdom of Spain’s assumption, is applicable in the present case, as discussed in the following section.
2. Admissibility of the questions referred
(a) Applicability of Directive 2014/104 in the main proceedings
29. The Kingdom of Spain submits that the second and third questions referred are inadmissible because they concern the power to estimate harm under Article 17 of Directive 2014/104. According to the Kingdom of Spain, that provision is not applicable in the context of the main proceedings, however.
30. Although the referring court does not refer to Article 17 of Directive 2014/104 in the text of its questions referred, it does do so in the grounds of the order for reference. Moreover, the Court is in any event required to include the relevant EU law provisions in order to provide the referring court with an answer which will be of use to it. (9)
31. Whether Article 17 of Directive 2014/104 is temporally applicable follows from Article 22 thereof. According to Article 22(1), the national measures adopted in order to transpose substantive provisions of that directive are not to apply retroactively. According to paragraph 2, however, measures transposing the directive, other than those referred to in paragraph 1, can be applied in actions brought after the entry into force of the directive on 26 December 2014.
32. As Advocate General Szpunar stated in his Opinion in PACCAR and Others, it follows from the logic of Article 22 of Directive 2014/104 ‘that the reference to “national measures […] other than [substantive provisions]”, for the purposes of Article 22(2) of that directive, relates to procedural provisions’. (10)
33. In its judgment in Volvo and DAF Trucks, the Court stated that (contrary to the view taken by the Kingdom of Spain in the present case, which, however, was expressed before that judgment was delivered) the question as to which provisions of that directive are substantive and which are procedural must be assessed in the light of EU law and not in the light of the applicable national law. This is because Article 22 of the directive does not contain a reference to national law. (11)
34. Moreover, in that judgment, the Court held, first, that Article 17(1) of Directive 2014/104, which concerns the possibility to estimate the amount of harm and which is at issue in the present case, is procedural in nature. (12) Second, the Court held that that provision is temporally applicable in an action for damages brought after 26 December 2014 and after the date of transposition of Directive 2014/104 into national law. The latter date is relevant because, in the absence of national transposing legislation, the application of the provisions of that directive vis-à-vis individuals would be problematic at least prior to the expiry of the time limit for transposition of the directive. (13)
35. Therefore, the national provisions transposing Article 17(1) of Directive 2014/104 are applicable in the main proceedings in accordance with Article 22(2). This is because, in the present proceedings, the action was brought on 11 October 2019, that is to say after 26 December 2014 and after the date of transposition of the directive into Spanish law on 27 May 2017 (see points 11 and 13 above).
36. The temporal applicability of the other provisions of the directive that may be relevant in the present case will be discussed, if appropriate, in the substantive assessment of the questions referred.
37. On a preliminary note, it should be noted in that regard that, in so far as the provisions of the directive codify, in a purely declaratory manner, principles that have previously been recognised by the case-law, (14) those principles continue to apply without it being relevant whether the relevant provisions of the directive are to be categorised as substantive for the purposes of Article 22(1).
38. Moreover, the questions referred are admissible in any event, irrespective of the applicability of the directive. This is because, even if some provisions of the directive were not temporally applicable, those questions must be answered on the basis of Article 101 TFEU, in conjunction with the principle of effectiveness.
(b) Limitation period in relation to the action in the main proceedings
39. Contrary to the view taken by the Kingdom of Spain, the relevance of the questions referred for the decision to be given in the dispute in the main proceedings cannot be called into question by the argument that the action in the main proceedings is time-barred.
40. In its judgment in Volvo and DAF Trucks, the Court categorised Article 10 of Directive 2014/104, which governs the limitation period for actions for damages under competition law and provides for a minimum limitation period of five years for such actions, as a substantive provision. (15) Further, the Court held that, as a general rule, the limitation period begins to run on the date of publication in the Official Journal of the summary of the Commission’s decision finding the infringement. (16)
41. In addition, the Court held that the limitation period of five years laid down in Article 10 of Directive 2014/104 can be applied in the context of an action for damages which, although relating to an infringement of competition law which ceased before the entry into force of the directive, was brought after the entry into force of the provisions transposing it into national law. In any event, this applies in a case, in which the limitation period for bringing that action under the old rules had not elapsed before the date of expiry of the time limit for the transposition of the directive and even has continued after the entry into force of the national transposition rules. (17)
42. According to the Kingdom of Spain, prior to the transposition of Directive 2014/104, the limitation period under national law was one year. In the present case, the summary of the Commission’s decision finding the infringement was published in the Official Journal on 6 April 2017. (18) Subject to review by the referring court, it can be assumed that the applicants had obtained the information necessary for bringing their action at that time and that the one-year limitation period began to run at that time. Thus, that period had expired neither before the deadline for transposition of Directive 2014/104 on 27 December 2016 nor before the entry into force of the Spanish transposing rules on 27 May 2017 (point 11 above). Therefore, subject to review by the referring court, Article 10 of the directive and the five-year limitation period introduced by its transposition in Spain are applicable to the action in the main proceedings.
43. Since the action in the main proceedings was brought on 11 October 2019, and thus less than five years after the limitation period began to run, that action is therefore not time-barred and the questions referred are relevant to the decision to be given.
3. Conclusion regarding the admissibility of the request for a preliminary ruling
44. It follows from the foregoing that the request for a preliminary ruling is admissible.
B. Substantive assessment of the questions referred
45. The three questions referred by the Juzgado de lo Mercantil n° 3 de Valencia (Commercial Court No 3, Valencia) concern, in essence, two sets of issues. First, the question is whether the Spanish general regime on costs of proceedings, which provides that the costs of the proceedings are to be divided into two even where the claimant is successful in part, renders the enforcement of the right to antitrust damages excessively difficult (1). Second, the question is under which conditions a national court can make use of the possibility to estimate the amount of antitrust damages claimed (2).
1. Allocation of costs under Article 394(2) of the LEC (first question referred)
46. The costs regime in Article 394(2) of the LEC is likely to deter an applicant from asserting and enforcing his or her rights, as it entails the risk that he or she will have to bear the entirety of his or her own costs as well as half of the common costs even if he or she is successful in part (a). However, the question arises as to whether that provision, read in conjunction with Article 394(1) of the LEC, can be interpreted in conformity with EU law in such a way that it does not constitute an excessive obstacle to the effective enforcement of the right to antitrust damages (b).
(a) The costs regime in Article 394(2) of the LEC – an excessive obstacle to the effective enforcement of the right to antitrust damages?
47. By its first question, the referring court seeks to ascertain whether the cost allocation regime in Article 394(2) of the LEC is compatible with Article 101 TFEU, in conjunction with the principle of effectiveness and the right to full compensation for the harm caused by an infringement of competition law.
48. In accordance with the Court’s case-law on Article 101 TFEU, in conjunction with the principle of effectiveness, codified in a declaratory manner in Article 4 of Directive 2014/104, the procedural rules of the Member States for the enforcement of the right to compensation for harm caused by infringements of competition law must not render such enforcement practically impossible or excessively difficult. (19)
49. In accordance with Article 394(2) of the LEC, the applicant is to bear his or her own costs and half of the common costs even where he or she is successful in part.
(1) Transferability of the case-law on Directive 93/13
50. That provision was, inter alia, the subject of the judgment in Caixabank and Banco Bilbao Vizcaya Argentaria (‘the judgment in Caixabank’), (20) which is also cited by the referring court. In that judgment, the Court ruled that Directive 93/13/EEC on unfair terms in consumer contracts (‘Directive 93/13’), (21) in conjunction with the principle of effectiveness, precludes the rule in Article 394 of the LEC in so far as it allows a consumer to be made to bear part of the costs of the proceedings depending on the degree to which he or she was successful. The judgment concerned the case where the action brought by a consumer for a declaration as to the invalidity of an unfair contractual term is upheld in its entirety, but the action for a refund of sums paid pursuant to that term is only partially upheld. According to the Court, in such a case, the system at issue creates a substantial obstacle that is likely to discourage consumers from exercising the right to an effective judicial review of the potential unfairness of contractual terms such as that conferred by Directive 93/13.
51. Can that finding be transferred to the area – at issue in the present case – of enforcing rights conferred by EU law for damages caused by infringements of competition law?
52. It is clear that there are structural parallels between the problem of unfair terms and the problem characterising the field of antitrust damages. This is because, in both areas, there tends to be a structural imbalance to the detriment of one party.
53. That imbalance is well known in the relationship between traders, on the one hand, who often use standardised contractual models, and consumers, on the other hand. Therefore, as evidenced by its recitals, Directive 93/13 aims to safeguard citizens in their role as consumers and to strengthen their rights.
54. As the applicants argue in the present case and as is apparent from recitals 14, 15, 45 and 46 of Directive 2014/104, the law governing antitrust damages is also characterised by a structural imbalance between the claimant – the injured party – and the defendant – the injuring party. That imbalance is due, in particular, to an information asymmetry to the detriment of the claimant and difficulties in providing evidence and quantifying harm, which Directive 2014/104 seeks to address through its rules on disclosure of evidence and quantification of harm (Articles 5, 6 and 17).
55. Consequently, even though claimants in proceedings relating to antitrust damages are usually not consumers, their situation of structural inferiority is nevertheless sufficiently comparable to that of consumers within the meaning of the judgment in Caixabank.
56. As the applicants further submit, an aggravating factor in cases such as the present one, and in the other proceedings for damages brought on the basis of the truck cartel, is that the injured parties in such cases are often small or medium-sized undertakings, whereas the defendants are multinational groups. Such a situation is frequently – albeit not inevitably – encountered in proceedings for antitrust damages. (22) This also explains the proliferation of litigation funding schemes in that area. With a view to the effective enforcement of antitrust law, however, it is precisely those who (in absolute terms, albeit not necessarily considered individually) have suffered relatively little harm or even scattered harm who should be encouraged to enforce their rights.
57. In that context, a further structural and teleological parallel between the regulatory area of Directive 93/13 and that of antitrust damages is that, in both areas, the claimants contribute to the achievement of EU objectives, such as the functioning of the internal market or the protection of fair competition, by enforcing their own rights. This is because, contrary to the Kingdom of Spain’s submission, Directive 93/13 aims not only to compensate the consumer concerned but also to put an end to the use of unfair terms as a whole. Similarly, the right to antitrust damages serves not only a compensatory function, but also a dissuasive function, thereby effectively enforcing competition law. (23) Such a function of the claimant as a ‘defender’ or ‘enforcer’ of EU interests can also be found, for example, in the case of actions brought by competitors in State aid or public procurement law or in the case of actions brought by associations in environmental law.
58. However, as Daimler states, the judgment in Caixabank related to two heads of claim (a finding that the term in question was unfair and the repayment of sums paid on the basis of that term), the first of which was successful in full and the second only in part. (24) By contrast, the present dispute in the main proceedings concerns a single claim for damages.
59. It is true that, contrary to the view taken by Daimler, this does not fundamentally call into question the comparability of the two situations. Nevertheless, it may give rise to a need for the solution in the judgment in Caixabank to be nuanced in the present case. The following considerations must be taken into account in that regard.
(2) Nuancing of the case-law on Directive 93/13 in the area of antitrust damages
60. First, it does not seem out of the question to focus on success as to the acknowledgement of the claim in principle in a case such as the present one also. This is because, in upholding the applicant’s claim in part, it is acknowledged that the latter has suffered harm as a result of the infringement of competition law at issue. From that point of view, the present situation is comparable to that in the judgment in Caixabank, in which the main claim for a declaration as to the unfairness of the term in question was upheld.
61. Second, however, Daimler is to be agreed with in so far as, in the case of antitrust damages, as in the case of proceedings for damages in general, the calculation of the amount of harm is of central importance. This is because, when a claim for damages is acknowledged in principle, usually the claimant is not simply awarded a lump sum which has nothing to do with the specific circumstances of the case. Rather, the system for the taking of evidence and the quantification of harm under Directive 2014/104 (25) aims to make it possible for the harm to be quantified as precisely as possible. Moreover, the rebuttable presumption under Article 17(2) of Directive 2014/104 – according to which it is presumed that cartel infringements cause harm – should not cover the concrete amount of harm, as stated in recital 47 of the directive. Therefore, in proceedings for antitrust damages, it would not seem unreasonable for the assessment of the claimant’s success for the purposes of the decision as to costs to be based on the proportion of the claim awarded to the claimant.
62. Third, the sharing of costs in a case where each party succeeds on some and fails on other heads is an expression of procedural fairness. (26) As Daimler notes, such sharing of costs is also provided for in Article 138(3) of the Rules of Procedure of the Court of Justice. Such a rule is intended precisely in proceedings for damages to prevent claimants from making excessive claims that are not proportionate to the harm suffered.
63. Fourth, however, proceedings for damages in relation to infringements of competition law are characterised by the fact that the quantification of harm is particularly problematic in such cases and can therefore constitute a significant hurdle to the enforcement of effective claims for damages (see point 54 above). That is the reason why national courts must have the discretion to estimate the amount of harm, as provided for in Article 17(1) of the directive.
64. Fifth, due to those difficulties in precisely quantifying harm, and due to the possibility to estimate it, the risk of being unsuccessful in part in proceedings for damages under competition law is particularly high. Moreover, as acknowledged in recital 45 of Directive 2014/104, and as noted by the referring court and the applicants, the preparation of the economic expert reports required to quantify harm can be very costly. As the referring court underlines, the compensation effectively received can thus be significantly reduced by the requirement to bear half the costs.
65. It follows from the combination of those factors that, as with the risk of being unsuccessful in part in the judgment in Caixabank, the risk of a claimant having to bear his or her own costs and half of the common costs, even where he or she is successful in part, in proceedings for damages under competition law ‘creates a substantial obstacle that is likely to discourage [claimants] from exercising the right to [antitrust damages which stems from Article 101 TFEU]’. (27)
66. Sixth, and lastly, this does not mean that the defendant must necessarily bear the claimant’s costs in their entirety in every case in which the claimant is successful in part. This is because, as Daimler submits, the right to full compensation for harm suffered as a result of an infringement of competition law, recognised in the case-law, (28) codified in Article 3 of Directive 2014/104 does not necessarily imply that the enforcement of that right may not entail any costs at all. The criterion that a person who has suffered harm must be placed in the position in which that person would have been had the infringement of competition law not been committed (Article 3(2)) does not mean that that person must in every case be placed in the position in which he or she would have been had the proceedings to enforce such compensation not been brought.
67. In that sense, the Court recognised, in another case concerning Directive 93/13, that the principle of effectiveness does not preclude a consumer from incurring certain legal costs when he or she brings proceedings for a declaration that a contractual term is unfair. In that respect, the Court considered it to be compatible with the principle of effectiveness for the lawyers’ fees which consumers have incurred to be refunded to them not necessarily in full but only up to a reasonable amount, provided that the costs refunded are not so low in comparison with the amount of the disputed claim that they deter the consumer from asserting his or her rights. The Court justified this, in essence, on the grounds that the liability for the fee that the consumer agreed with his or her lawyer falls within the consumer’s sphere of responsibility and that the defendant trader is not required to bear the risk of being obliged to pay the consumer’s excessive legal costs, which are not appropriate to the case. (29)
68. From this it can be deduced, mutatis mutandis, with regard to proceedings for antitrust damages that, where the claimant is unsuccessful in part, it is reasonable for him or her to bear his or her own costs, or at least part of them, as well as part of the common costs, provided that the origin of those costs is to be attributed to his or her own sphere of responsibility. This could be the case, for example, where the partially unsuccessful outcome is due to the fact that the claimant made excessive claims or due to the manner in which he or she conducted the litigation.
69. If, on the other hand, the partially unsuccessful outcome is due to the generally recognised, excessive structural difficulty or even practical impossibility of quantifying harm caused by infringements of competition law, the liability for that partially unsuccessful outcome is not attributable to the claimant’s sphere of responsibility and there is no justification for imposing on him or her the costs of enforcing his or her claims for damages. Otherwise, the enforcement of such claims would be rendered excessively difficult or even practically impossible and this would therefore be likely to deter the claimant from effectively asserting and enforcing his or her right to antitrust damages.
70. In that case, it is appropriate, rather, to attribute the risk of the claimant being partially unsuccessful to the sphere of responsibility of the defendant, who committed the prohibited infringement of competition law. The defendants are in principle responsible for the institution of the proceedings because they formed a cartel. Such a cartel, having the purpose of price-fixing, is at least as serious as the use of unfair terms. Moreover, the prohibition of such infringements is well known and the actions brought by persons harmed by cartels and the associated legal costs are foreseeable for cartel members. The problem of quantifying the harm caused by a cartel is also well known. The risk of persons harmed by a cartel being unsuccessful in part is therefore sufficiently foreseeable for the injuring parties. (30)
71. Therefore, it would appear to be justified and fair, in actions for damages under competition law, to deviate from the general principle that the costs of the proceedings are to be shared in the event that each party succeeds on some and fails on other heads, where the claimant’s being unsuccessful in part is due to excessive difficulties in quantifying the harm or to the impossibility of such quantification and thus cannot be attributed to his or her sphere of responsibility. It is for the court hearing the case in question to assess whether that is the case, in the light of the specific circumstances of the individual case.
72. It follows from the foregoing that, in the present case, as in the context of Directive 93/13, the costs regime in Article 394(2) of the LEC is not compatible with the principle of effectiveness where, in the event that the claimant’s being unsuccessful in part is due to excessive difficulties in quantifying the harm or to the impossibility of such quantification, that principle results in the claimant nevertheless being required to bear his or her own costs and half of the common costs.
(b) Possibility to interpret Article 394(1) and (2) of the LEC in conformity with EU law?
73. According to settled case-law, it is for the national court to interpret the national provisions at issue, so far as possible, in the light of EU law and, in particular, the wording and purpose of Article 101 TFEU, without, however, interpreting those national provisions contra legem. (31)
74. Furthermore, the question as to whether a national provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. (32)
75. According to the referring court, Article 394(1) of the LEC, which provides that costs are to be awarded against the party all of whose claims have been dismissed, is interpreted by the Spanish courts as follows: even in cases where the claimant’s claims are granted ‘to a substantial extent’ (‘estimación sustancial’/‘accueil substantiel des conclusions’) and where there is only a small difference between what was claimed and what was awarded, it is possible to order the defendant to pay the costs.
76. However, according to the referring court and Daimler’s submission, that case-law (at least also) focuses on ‘quantitative’ and not only on ‘qualitative’ success. Consequently, it can, it appears, be applied only if the claims in respect of which the claimant has been unsuccessful can be regarded as accessory with regard to the subject matter of the proceedings and their overall economic value. Therefore, it is not clear whether that ‘substantial success’ rule can be applied only in cases where the claimant’s original claim for damages is upheld to the extent of almost 100% (or at least more than 70-80%) in terms of amount. The question arises as to whether it is also applicable in cases where that success concerns, in terms of amount, less than 70% or even less than 50% of the original claim (which would actually lead to the application of Article 394(2) of the LEC), where that partially unsuccessful outcome is due to excessive difficulties in quantifying the harm or the practical impossibility of such quantification.
77. Furthermore, according to Daimler’s submission, Spanish case-law has recognised the possibility for a claimant to be reimbursed the costs in full even in the event that he or she is unsuccessful in part, where he or she adjusts his or her claim in the course of the proceedings. It is for the referring court to assess the extent to which that case-law could lead, in a situation such as the present one, to the claimant being reimbursed the costs even where he or she is successful in part. In that respect, it would have to be assessed, in particular, whether the requirement to adjust the claim in the course of the proceedings would render the enforcement of the right to antitrust damages practically impossible or excessively difficult. For example, it would not be acceptable for the claimant to be pressured into reducing the amount of his or her originally reasonable claims to an unreasonable level on account of the risk of bearing half of the legal costs. By contrast, it would be conceivable for the claimant to adjust those claims on the basis of the competent court’s assessment of the evidence and estimation of the amount of harm.
78. Furthermore, Daimler submits that the Spanish courts have recognised the possibility, in proceedings for damages under competition law, not to require claimants to pay any costs even where they have been unsuccessful in full.
79. It remains unclear whether Article 394(2) of the LEC would also allow, where appropriate, the claimant to be obliged to bear only part (and not all) of his or her own costs and the common costs where this were justified by the circumstances of the case, in particular the excessive difficulty in quantifying the harm or the impossibility of such quantification, on the one hand, and the parties’ conduct in the proceedings, on the other hand.
80. It is for the referring court to assess, in the light of all those elements, whether Article 394(1) and (2) of the LEC can be interpreted in conformity with EU law as meaning that, where the claimant has been partially unsuccessful because it is excessively difficult or practically impossible to quantify the harm, the defendant is to bear all the costs or, depending on the circumstances of the case, may be required to bear at least a reasonable portion of the claimant’s costs.
(c) Interim conclusion
81. It follows from the foregoing that Article 101 TFEU, in conjunction with the principle of effectiveness, must be interpreted as not precluding national legislation which, in certain cases, provides that the costs are to be divided into two even where the claimant has been successful in part. However, that requires that that legislation can be interpreted in conformity with EU law as meaning that, where the claimant has been partially unsuccessful because it is excessively difficult or practically impossible to quantify the harm, the defendant is to bear all the costs or, depending on the circumstances of the case, may be required to bear at least a reasonable portion of the claimant’s costs.
2. Conditions for estimating the amount of harm (second and third questions referred)
82. By its second and third questions, the referring court seeks to ascertain whether it can make use of the possibility to estimate the amount of individual harm suffered as a result of a cartel in a case such as the present one. In that respect, it highlights two specific features of the present case: first, the fact that the data on which the defendant’s expert report was based were disclosed to the applicant (a); second, the fact that the applicant brought an action against only one of the cartel participants from whom he purchased some of the goods implicated in the cartel (b).
(a) Access to the data on which the defendant’s expert report on damage is based (second question referred)
83. In its second question referred, the referring court refers to the concept of ‘information asymmetry’ between the parties. It can be concluded from that wording, as well as from the reference to access to the data on which the defendant’s expert report on damage was based, that the referring court seeks to ascertain whether it may estimate the amount of harm where the claimant had access to those data, with the result that the asymmetry between the parties may be reduced to a certain extent.
84. The existence of an ‘information asymmetry’ is not a condition for estimating the amount of harm under Article 17(1) of Directive 2014/104.
85. Recital 46 of that directive refers to information asymmetries between the parties and the well-known difficulties in quantifying harm in connection with the need to provide for the possibility to estimate the harm. It can be concluded from this that the information asymmetry typically existing was only one of several reasons why the legislature created the possibility of estimation.
86. This is because difficulties in quantifying harm are possible even in the case of a balanced situation in terms of information. Therefore, the estimation does not serve merely to offset the information imbalance between the parties, but rather to overcome the evidentiary difficulties in quantifying the harm as a whole.
87. By contrast, recital 15 cites information asymmetry between the parties as the reason for the creation of the rules on taking evidence, which are intended to reduce such asymmetry.
88. Articles 5 and 6 of Directive 2014/104 (33) provide that national courts may order the claimant, the defendant, third parties or competition authorities to disclose evidence. Article 17(1) provides for the possibility of estimation in cases where it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available. (34) Therefore, that provision is based on the assumption that the possibilities to order the disclosure of evidence have already been exhausted and quantification is nevertheless practically impossible or excessively difficult. Consequently, the estimation of harm is subsidiary to the precise quantification of harm by means of the taking of evidence.
89. Accordingly, a disclosure of evidence by the defendant, even if not pursuant to an order under Article 5 but on his or her own initiative, is nothing other than a further means of establishing the facts. Consequently, such disclosure does not rule out the possibility that the quantification of harm is nevertheless practically impossible or excessively difficult.
90. Furthermore, it cannot be sweepingly assumed that access to the data on which the defendant’s expert report on damage is based eliminates the information asymmetry between the parties in its entirety. And even a balanced situation in terms of information would not rule out the possibility of it being practically impossible or excessively difficult to quantify the harm.
91. First, in order to determine the extent to which access to the data in question actually reduces the information asymmetry between the parties, it is necessary to assess, on a case-by-case basis, the specific arrangements according to which the data are made available, as well as the scope and informative value of those data. This may concern circumstances such as whether a claimant is provided with a very large amount of data in difficult-to-access formats within a short period of time, the extent to which those data can be used, and so forth.
92. According to the applicants, the disclosure in the present case related only to the data used by the defendant to prepare its expert report on damage. The applicants’ experts did not have the opportunity to request the disclosure of further data. Furthermore, the period within which those data could be viewed was fairly short (the referring court mentions ‘one week, during office hours’, while the applicants mention ‘five working days, in the mornings’). When viewing the data, the applicants were not permitted to make any copies whatsoever or to use any electronic devices of their own. Moreover, the data in question were not added to the file and could not be viewed by the referring court itself. Lastly, the applicants’ expert had a short period of time – 10 to 15 days – to revise his expert report, if necessary, on the basis of the data viewed.
93. On the basis of those assumptions, it seems difficult to imagine, due merely to the arrangements for the disclosure, that that measure completely eliminated the information asymmetry between the parties with regard to the calculation of harm.
94. The fact that the applicants did not amend their own expert report after having viewed the defendant’s data cannot sweepingly lead to the assumption that the applicants did not make every effort to quantify the harm and that, therefore, practical impossibility or excessive difficulty could not be presumed in that respect. Rather, account must be taken of the informative value of the data as well as the fact that the applicants submitted a technical expert report on the results obtained by means of the access to the defendant’s data (see point 16 above).
95. Thus, it is true that the applicant can usually be expected to modify his or her submission accordingly in the light of data obtained in the course of the proceedings. However, if those data are a priori unsuitable for a more precise quantification, which is for the national court to determine, the applicant cannot be required to modify his or her submission. In that respect, it is for the national court to assess the degree to which any such data are suitable for quantifying the harm, where necessary by means of relevant expert reports.
96. Second, even in the case of a balanced situation in terms of information, the possibility of continuing to conclude that it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available cannot be ruled out.
97. This is simply due to the fact that the factual basis is sometimes extremely complex. Thus, even the participants in a cartel are often unable to assess with certainty the degree to which prices would have moved in the absence of an anticompetitive agreement. In particular, they cannot know the extent to which certain competitors would have succeeded in reducing costs and thus prices in the event of full competitive pressure. In that case, they would also be unable to disclose appropriate data on the basis of which the amount of harm could be definitively determined.
98. It follows from the foregoing that the disclosure of the data used to prepare the defendant’s expert report does not rule out the possibility of an information asymmetry between the parties continuing to exist or of it being practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available.
(b) Action against only one of the cartel participants from whom the goods implicated in the cartel were purchased (third question referred)
99. The third question seeks to determine whether and to what extent the fact that an applicant directed his or her action against only one of the cartel participants from which he or she purchased goods implicated in the cartel has an impact on the possibility of estimating the amount of harm.
100. In that regard, it must first be clarified that that question does not concern the interpretation of Article 11 of Directive 2014/104 on joint and several liability. This is because the referring court does not in any way question that the applicants could sue Daimler not only in respect of the trucks which they purchased from Daimler, but also in respect of those which they purchased from other participants in the cartel.
101. Purely for the sake of completeness, it should be noted that the principle that any person harmed by a cartel can claim compensation from any cartel participant where there is a causal relationship between that harm and the infringement of competition law committed by that cartel participant follows in any event already from the case-law of the Court. Therefore, that principle was codified only in a declaratory manner in Article 11 of the directive and is in any event applicable in the present case (see point 37 above).
102. This is because, as the Court has recently held, without referring to Directive 2014/104, an infringement of competition law involves, in principle, the joint and several liability of all of the undertakings that committed the infringement. (35) This already follows from the judgments in Kone and Others and Otis Gesellschaft and Others, which concerned actions brought by persons injured by umbrella pricing and, respectively, public bodies granting subsidies who were not directly in a contractual relationship with any of the cartel participants and had not directly acquired goods implicated in the cartel from any cartel participant. (36) It is not apparent why, in a case where a claimant has acquired goods implicated in a cartel from one or more cartel participants directly, his or her right to bring an action against all, or only certain, cartel participants for compensation for the harm caused by a jointly committed infringement should depend on whether he or she acquired the goods from the defendant cartel participant or participants or whether those goods were produced by the latter.
103. Accordingly, the third question referred addresses, rather, procedural fairness vis-à-vis Daimler. It asks whether it is possible to assume an information asymmetry to the detriment of the applicants and to estimate the amount of harm even if Daimler did not sell and produce all the goods at issue implicated in the cartel. This is because Daimler therefore inevitably had less information than the other cartel participants with regard to those goods. The referring court therefore seems to have doubts as to whether it can assume a situation of information asymmetry to the detriment of the applicants and in favour of Daimler in the present case.
104. With regard to that situation, too, however, it follows from the statements made above in points 84 to 88 that the sole decisive factor under Article 17(1) of Directive 2014/104 is whether it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available.
105. Therefore, it is in principle necessary in such a situation to require third parties to release information, where applicable, by means of court orders under Article 5(1) of the directive. This also safeguards the defendant’s rights of defence. This is because Article 5(1) of Directive 2014/104 provides that the defendant may also request that the claimant or third parties disclose evidence. In that respect, the competent court must take into account the prospects of success of any requests for evidence made by the defendant, so that such requests do not lead to the proceedings being delayed for purely tactical reasons.
106. Once those means of gathering evidence have been exhausted, it is for the court concerned to determine whether it continues to be practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available and to estimate the amount of harm.
107. In any event, in a case where the defendant did not distribute or produce all of the goods at issue implicated in the cartel, it is not justified sweepingly to assume that there is no information asymmetry to the detriment of the claimant. This is because, as the referring court itself notes, it must also be assumed in such a case that the cartel participants generally have more information about the infringement and its impact on prices than the injured parties.
108. Moreover, the exercise of a claimant’s right to bring an action against any cartel participant should not be detrimental to him or her to the extent that it would sweepingly preclude the possibility of estimation. In that respect, Daimler claims that the applicants deliberately refrained from creating a situation in which all the relevant information regarding the amount of harm would be available. However, the right of victims of a cartel to bring an action against all, or only certain, cartel members is an important component of the effective enforcement of the right to antitrust damages and must not be restricted without good reason. Rather, that right must be exercised with respect for all relevant principles, which include the rights of defence of the defendant cartel members.
109. Consequently, the fact that the claimant brought an action against only one of the cartel participants from whom he or she acquired the goods at issue implicated in the cartel does not mean that the possibility to estimate the harm on the ground that it is practically impossible or excessively difficult to quantify that harm is precluded, provided that, at the defendant’s request, all promising and reasonably feasible possibilities of gathering evidence in its favour have also been exhausted.
(c) Interim conclusion
110. It follows from the above considerations that, under Article 17(1) of Directive 2014/104, an estimate of the amount of harm requires that a claimant suffered harm but it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available. If, at the defendant’s request, all promising and reasonably feasible possibilities of gathering evidence in its favour have been exhausted, those conditions may be met even where the defendant has disclosed certain data and only some of the goods implicated in the cartel were acquired from it.
VI. Conclusion
111. In the light of all the foregoing, I propose that the Court answer the questions referred as follows:
(1) Article 101 TFEU, in conjunction with the principle of effectiveness, must be interpreted as not precluding national legislation which, in certain cases, provides that the costs be divided into two even where the claimant has been successful in part. However, that requires that that legislation can be interpreted in conformity with EU law as meaning that, where the claimant has been partially unsuccessful because it is excessively difficult or practically impossible to quantify the harm, the defendant is to bear all the costs or, depending on the circumstances of the case, may be required to bear at least a reasonable portion of the claimant’s costs.
(2) Under Article 17(1) of Directive 2014/104/EU 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, an estimate of the amount of harm requires that a claimant suffered harm but that it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available. If, at the defendant’s request, all promising and reasonably feasible possibilities of gathering evidence in its favour have been exhausted, those conditions may be met even where the defendant has disclosed certain data and only some of the goods implicated in the cartel were acquired from it.