Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 3 April 2025 (1)
Case C‑21/24
CP
v
Nissan Iberia, S.A.
(Request for a preliminary ruling from the Juzgado de lo Mercantil n.° 1 de Zaragoza (Commercial Court No 1, Zaragoza, Spain))
( Reference for a preliminary ruling – Competition – Principle of effectiveness – Compensation for harm caused by a practice prohibited under Article 101(1) TFEU – Directive 2014/104/EU – Private enforcement – Late transposition of the directive – Temporal application – Article 10 – Limitation period – Detailed rules for the dies a quo – Knowledge of the information necessary for bringing an action for damages – Judgment in Case C‑605/21, Heureka Group (Online price comparison services) – Publication of the decision of a National Competition Authority (NCA) on its website – Binding effect of an NCA decision that is not yet final – Suspension or interruption of the limitation period until the date on which that decision becomes final )
1. The present request for a preliminary ruling concerns the interpretation of Article 101 TFEU, in the light of the principle of effectiveness. It has been made in the context of proceedings between CP, a natural person, and Nissan Iberia, S.A. (‘Nissan’) regarding an action brought by CP for compensation for harm allegedly resulting from an infringement of Article 101 TFEU and Article 1 of Ley 15/2007 de Defensa de la Competencia (Law 15/2007 on the protection of competition) of 3 July 2007, established by the Comisión Nacional de los Mercados y la Competencia (National Commission on Markets and Competition; ‘the CNMC’), which was committed by several undertakings, including Nissan.
2. The present case follows in the wake of the Court’s cases concerning limitation periods applicable to actions for damages for infringements of EU competition law and, in particular, the determination of the dies a quo (2) of such periods. (3) However, the present case differs from those cases in so far as the action for damages was brought following a decision of a National Competition Authority (NCA) published on its website and not following a decision of the European Commission, a summary of which was published in the Official Journal of the European Union.
I. Legal framework
A. European Union law
3. Article 9 of Directive 2014/104/EU, (4) entitled ‘Effect of national decisions’, provides:
‘1. Member States shall ensure that an infringement of competition law found by a final decision of [an NCA] 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.’
4. According to Article 10 of that directive, entitled ‘Limitation periods’:
‘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 [an NCA] 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.’
II. The facts giving rise to the dispute in the main proceedings and the questions referred for a preliminary ruling
5. On 23 July 2015, the CNMC adopted a decision in Case S/0482/13, Fabricantes de Automóviles (Automobile manufacturers), by which it found that conduct consisting of exchanges of commercially sensitive information between several undertakings, including Nissan, which ended in 2013, was contrary to Article 101 TFEU and Article 1 of Law 15/2007.
6. On 28 July 2015, the CNMC issued a press release in that regard.
7. On 15 September 2015, the CNMC’s decision was published on its official website.
8. That decision was the subject of several actions for annulment brought by the perpetrators of the alleged infringement, including Nissan, but it was upheld by the Tribunal Supremo (Supreme Court, Spain) in 2021.
9. In March 2023, CP brought an action for damages in the wake of that decision (follow-on action for damages) seeking an order that Nissan pay compensation for the harm allegedly suffered by CP as a result of the purchase of a vehicle the price of which was affected by the anticompetitive conduct found by the CNMC.
10. In its defence, Nissan maintains, in essence, that that action is time-barred. According to that company, under the limitation rules of the Código Civil (Civil Code), which are applicable in the present case, the one-year limitation period begins to run from the moment the injured party becomes aware of the unlawful conduct concerned. In the present case, in view of the fact that: (i) on 15 September 2015, the CNMC published on its official website the full text of the decision; (ii) the CNMC also published a press release in that regard; and (iii) there was widespread coverage in the national media of the case which was the subject of that decision, CP cannot claim to have been unaware of the information necessary for bringing his action for damages. Thus, according to Nissan, since it is not necessary for that decision to become final in order for the limitation period to begin to run, it may be considered that that period began to run on 15 September 2015.
11. The referring court states that it previously considered that actions such as the one at issue in the main proceedings were time-barred and that, consequently, the present action should have been brought as from the date of publication of the CNMC’s decision, that is to say, from 15 September 2015, without waiting for it to become final.
12. In essence, the referring court argues that the starting point for the limitation period for an action for damages cannot begin to run until the injured party is aware or could have been aware of: (a) the existence of the infringement; (b) the existence of the damage; (c) the causal link between the two; and (d) the identity of the perpetrator of the infringement.
13. On the contrary, according to the order for reference, the Audiencia Provincial de Zaragoza (Provincial Court, Zaragoza, Spain), when ruling upon an earlier judgment of the referring court, adopted a different approach in determining the dies a quo. According to the judgment of that higher court, the dies a quo from which the limitation period for an action for damages starts to run must be calculated from the moment the decision of the CNMC became final following a judgment of the Tribunal Supremo (Supreme Court) of June 2021.
14. In those circumstances, the Juzgado de lo Mercantil n.° 1 de Zaragoza (Commercial Court No 1, Zaragoza, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is there a legal basis in EU law for a distinction between the possibility and the obligation to bring an action for damages in respect of an infringement of competition or, conversely, once the injured party is aware or could reasonably have been aware both of the fact that he, she or it has suffered damage as a result of that infringement and of the identity of the perpetrator of the infringement, must that party bring such an action, and does the limitation period begin to run?
(2) For an action for damages to be brought before the judicial authority, must the party wishing to bring that action wait until the penalty has become final before the courts or, conversely, if the decision of the [NCA], published in full, contains information about the identity of the perpetrators of the infringement in question, its exact duration and the products concerned by that infringement, must it be assumed that an action for damages may be brought before the courts and the limitation period begins to run?
(3) Should the publication of the full penalty on the official, public website of the [NCA] be treated as equivalent to the publication of the summary of the [Commission’s] decision in the [Official Journal] for the purposes of the limitation period, given that the decisions of the [NCA] are only published on the official website?’
III. Procedure before the Court of Justice
15. Written observations were submitted by Nissan, the Spanish Government and the Commission. A hearing was held on 16 January 2025, at which those parties were represented, as was CP.
IV. Assessment
A. Preliminary observations
16. In the order for reference, there is uncertainty as to whether Directive 2014/104 and Real Decreto-ley 9/2017 (‘Royal Decree-Law 9/2017’) of 26 May 2017, which transposes that directive into Spanish law, are applicable ratione temporis to the main proceedings. Royal Decree-Law 9/2017 entered into force on 27 May 2017. (5)
17. In order to determine the temporal applicability of Article 10 of Directive 2014/104, which lays down rules on limitation periods in private enforcement cases, it is necessary to ‘ascertain whether the situation at issue in the main proceedings arose before the expiry of the time limit for the transposition of that directive or whether it continued to produce effects after the expiry of that time limit’. (6)
18. Although the referring court provides precious little information on the national legal framework applicable to the questions referred, it can be deduced from the order for reference that prior to the transposition of Directive 2014/104 into Spanish law, the limitation period for bringing actions for damages for infringements of competition law was governed by the general regime applicable to non-contractual civil liability and, therefore, amounted to one year.
19. Admittedly, in the present case, the action for damages in the main proceedings was brought in March 2023, that is to say, after both the deadline for the transposition of Directive 2014/104 into national law and the date when it was eventually transposed. At the same time, the referring court considers that the limitation period for the main proceedings should have begun to run on the date of publication of the CNMC decision on its website, that is to say, on 15 September 2015. In other words, that date precedes the temporal application of that directive.
20. Furthermore, in the case of Nissan, the infringement ceased in August 2013, that is to say, before the expiry of the transposition period provided for in Article 21 of Directive 2014/104 (set at 27 December 2016), and before the entry into force of Royal Decree-Law 9/2017.
21. Consequently, pursuant to the transitional regime of that directive (Article 22(1)) and Royal Decree-Law 9/2017 (Article 3 and first transitional provision), which provide for the non-retroactivity of their substantive provisions, the directive in question and the related provisions of Royal Decree-Law 9/2017, in general, do not seem to be temporally applicable to the dispute in the main proceedings, and it is appropriate to rely directly on the FEU Treaty.
22. Furthermore, I note that the referring court does not mention, in the questions referred, any specific provisions of EU law that it seeks to have interpreted. However, it follows from the order for reference that the referring court is asking the Court to clarify the interpretation of Article 101 TFEU in relation to limitation periods in respect of follow-on actions for damages in a case where the infringement of EU competition law is established by a decision of an NCA.
B. Admissibility of the first question referred
23. By the first question, the referring court seeks to know, in essence, whether there is a legal basis in EU law for a distinction between the possibility (the right) and the obligation to bring an action for damages in respect of an infringement of competition law.
24. In my view, that question is hypothetical, in so far as, in accordance with the case-law, it is not ‘“necessary” to enable the referring court to “give judgment” in the case before it’. (7)
25. Indeed, the applicant in the main proceedings did, in fact, bring an action for damages and, therefore, he has already exercised his right to claim damages following an infringement of EU competition law. Moreover, as the Spanish Government points out, the doubts of the referring court underlying that question appear to stem entirely from the line of reasoning in a part of national case-law that is not sufficiently connected with EU law, but falls only within the scope of Spanish law. (8)
26. In addition, there are certain doubts as to the admissibility of the first question referred also from the point of view of compliance with the conditions laid down in Article 94(c) of the Rules of Procedure of the Court of Justice, in so far as the order for reference does not contain a precise statement of the reasons which led the referring court to submit that question. Indeed, ‘it is essential that the order for reference contain a statement of the reasons which prompted the national court to inquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings’. (9)
27. Finally, the above doubts are also reflected in the observations of the parties. Neither Nissan nor the Spanish Government nor the Commission submitted observations, in essence, on the first question. Instead, those parties propose to reformulate the three questions referred and address them together.
28. The first question should accordingly be declared inadmissible.
29. In any case, it may be pointed out that Article 101 TFEU confers a right – and does not impose an obligation – for an injured party to rely on the invalidity of an agreement or practice prohibited under that article in order to claim damages. However, once such a party does choose to bring an action for damages, that party is obliged to comply with the relevant rules, such as those relating to limitation periods. In order for such a party to meet those obligations and to benefit from the right conferred by EU law, the rules regulating limitation periods must be precise, clear and predictable. (10) My analysis of the second and third questions referred will address those issues in detail.
C. The second and third questions referred
30. As a preliminary point, I would recall that according to the Court’s settled case-law, ‘in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it’. (11)
31. By its second and third questions, which it is appropriate to examine together and reformulate, the referring court asks, in essence, first, whether Article 101 TFEU and the principle of effectiveness must be interpreted as not precluding national legislation, as interpreted by the relevant national courts, which provides that the limitation period – applicable to actions for damages for an infringement of the provisions of EU competition law, established by a decision of the NCA (follow-on action for damages) – does not start to run before the date on which that decision: (a) became final, where appropriate, after its confirmation by the relevant national courts; (12) and/or (b) was published on the website of that NCA, but has not yet become final. In that connection, the referring court asks, secondly, in essence, whether the Court’s approach in the judgment in Heureka (relating to follow-on actions based on Commission decisions, a summary of which is published in the Official Journal) can be transposed to a case such as the one in the main proceedings (relating to NCA decisions, which are published only on the NCA website).
1. Introduction
32. The Court has made clear that ‘any undertaking which considers that it has suffered damage as a result of restrictive practices may rely before the national courts … on the rights conferred on it by Article [101(1) and Article 102 TFEU], which produce direct effect in relations between individuals’. (13)
33. In that regard, ‘the full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 thereof would be put at risk if it were not open to any individual to claim damages for loss caused to him or her by an infringement of competition law’. (14)
34. Moreover, ‘the right for any person to seek compensation for such harm strengthens the working of the EU competition rules, since it discourages conduct, frequently covert, which is liable to restrict or distort competition, thereby contributing to the maintenance of effective competition in the European Union’. (15)
35. In order to ensure the practical effectiveness of EU competition rules, it is essential that both the system of public enforcement and the system of private enforcement evolve as effectively as possible. (16) In this sense, in the context of EU competition policy, public and private enforcements ‘should be viewed as an integrated system in which numerous factors contribute to the complementary goals of deterrence and compensation’. (17)
36. The Court, in reference to Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), makes clear that ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy in compliance with the conditions laid down in that article’. (18) The Court has also pointed out that ‘the Member States are … responsible for ensuring that, pursuant to the first paragraph of Article 47 of the Charter, the right to effective judicial protection is effectively protected in every case’. (19)
37. More specifically, in the absence of EU rules governing the matter, before the entry into force of Directive 2014/104, ‘it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to claim compensation for the harm resulting from an agreement or practice prohibited under Article 101 TFEU, provided that the principles of equivalence and effectiveness are observed’. (20)
38. However, for the purposes of answering the second and third questions referred, regard should be had only to the principle of effectiveness. Indeed, it is the only principle referred to by the referring court.
39. As regards that principle, the Court has held, first, that, ‘the rules applicable to actions for safeguarding rights which individuals derive from the direct effect of EU law must … not make it in practice impossible or excessively difficult to exercise rights conferred by EU law’. (21) Secondly, ‘the national rules applicable in the field of competition law must not jeopardise the effective application of Articles 101 TFEU and 102 TFEU and must be adapted to the specificities of cases in that field, which require, in principle, a complex factual and economic analysis’. (22)
40. In that regard, account should be taken of the fact that the bringing of actions for damages requires, in principle, a complex factual and economic analysis of the fact that disputes concerning infringements of competition law are characterised, in principle, by information asymmetry to the detriment of the injured party. (23)
41. As regards the determination of the dies a quo of the limitation period in actions for damages, the Court has held that two cumulative conditions must be met, namely (i) the cessation of the infringement of competition law (the objective element) and (ii) knowledge of the information necessary for bringing an action for damages (the subjective element). (24)
42. Condition (i) seems to have been met in the present case, given that it follows from the documents before the Court that the infringement in the main proceedings ended in August 2013. The disagreement among the parties relates to condition (ii), that is to say, the necessary requirements to be met in order to conclude that the injured party has knowledge of the necessary information which enables that party to bring an action for damages.
43. It is in the light of those introductory observations that the second and third questions referred will be examined.
2. Distinction between stand-alone and follow-on actions
44. As mentioned above, the right of the injured party to claim compensation for the harm resulting from an infringement of competition law is conferred on that party directly by the FEU Treaty, and it is for the national courts to ensure an effective application of the rules of that Treaty and, in particular, of Article 101 thereof. However, not all private enforcement actions share the same characteristics. Therefore, it is appropriate to start by clarifying the important distinction that exists between the two types of private enforcement actions, that is to say, a stand-alone action and a follow-on action. (25)
45. In a stand-alone action, a national court is ruling on the action for damages in a situation where there is no final decision by the competent competition authority, (26) relating to the same circumstances, (27) and where the burden of proof lies fully with the injured party. In such a case, the question, which is at the heart of the present case – that is to say, the relationship between the dies a quo of the limitation period and the decision of the competent competition authority – is not relevant, given that the injured party claiming damages is not seeking to rely on the findings of such an authority.
46. If the injured party has chosen to pursue a stand-alone action, such a party is not obliged to wait for the outcome of the public investigation, if any, nor does that party have to delay the action for damages until the decision of an NCA becomes final and fully enforceable under the applicable national law. In principle, stand-alone actions are more cumbersome for injured parties and, as stated by Advocate General Bobek in Stichting Cartel Compensation, in view of the rather heavy evidentiary burden that any claimant is likely to face in stand-alone private law actions for infringements of competition law, such actions are likely to be rare in practice. (28)
47. On the contrary, in follow-on actions, injured parties rely on an existing decision of the competent competition authority, be it an NCA or the Commission, in order to seek compensation for any harm which they can prove that they suffered as a result of the infringement. Accordingly, in the present scenario, injured parties seeking compensation for harm do not have to prove the competition infringement and the illegality of the agreement or conduct. In such a case, ‘most of the necessary evidence to prove their claim will [already] be in the possession of the competition authority’. (29)
48. Consequently, it is only in the context of follow-on actions that the question of the relationship between the decision of a competent competition authority and the dies a quo of the limitation period becomes relevant. That relationship is characterised by the link that connects the injured party’s knowledge of the information necessary for bringing an action for damages and the conclusions that can be drawn from that party’s reliance on a decision of the competent competition authority, which contains information for the purposes of bringing such an action.
49. In the present case, it is apparent from the information provided by the referring court that CP brought his action for damages before a national court after the adoption of an NCA decision. In his action, CP relies on the facts established by that authority as reviewed by the competent national court. It follows that the analysis of how to establish the dies a quo under Article 101 TFEU, in the light of the principle of effectiveness, should focus only on situations where an injured party pursues a follow-on action in which that party relies on the facts established by an NCA.
3. Is the solution in the judgment in Heureka directly transposable?
50. In order to determine the dies a quo of the limitation period in follow-on actions for damages, the second condition requires it to be established that the injured party possesses knowledge of the information necessary for bringing an action for damages (the subjective element). (30)
51. For that purpose, in this section of the Opinion I will examine the question at what point in time an injured party who brings a follow-on action based on an NCA decision can be considered to have sufficient knowledge of the information necessary for bringing the action for damages, that is to say, in particular, information about the identity of the perpetrators of the infringement in question, its exact duration and the products concerned by that infringement for the purposes of starting the limitation period. In order to answer that question, I will examine inter alia whether the Court’s judgment in Heureka, which dealt with the legal consequences attributed to the decisions of the Commission, can be applied mutatis mutandis to NCA decisions such as the one at issue in the main proceedings.
52. It is true that the recent judgment of the Grand Chamber in Heureka synthesises the Court’s previous case-law on the requirements relating to the dies a quo of the limitation period for a follow-on action. However, that synthesis is built upon the legal characterisation of the link that exists between the injured party’s knowledge of the necessary information, on the one hand, and an act of an institution of the European Union (that is to say, the decision of the Commission), on the other.
53. Whereas, in the present case, the follow-on action for damages was brought on the basis of an NCA decision, which was published not in the national official journal, but on the website of that authority and was the subject of several actions for annulment (in other words, it was not yet ‘final’).
54. Therefore, it must be assessed whether or not the judgment in Heureka – which relates to the effects, on the dies a quo of the limitation period, of the publication in the Official Journal of the summary of the Commission decision finding the infringement in the case – can be transposed to the present case.
55. In the most recent judgment in that line of case-law, Heureka, the Court ruled, in essence, that ‘irrespective of whether or not the Commission decision at issue has become final, from the date of publication in the [Official Journal] of the summary of that decision and provided that the infringement concerned has come to an end, the view may, in principle, reasonably be taken that the injured party has all the information necessary to enable it to bring an action for damages within a reasonable period’. (31)
56. In order to reach that conclusion, the Court relied on a number of distinct arguments: (i) the publication of the summary of Commission decisions in the Official Journal; (ii) the presumption of legality of Commission decisions; (32) and (iii) the fact that those decisions are binding on national courts, as provided for in Regulation No 1/2003. (33) In that regard, the Court contrasts the binding nature of Commission decisions with the ‘decisions of [NCAs] [which have probative value ascribed] only where those decisions are final’. (34) The Court also relies on the sufficiency of the necessary information contained in the decision in question. That implies that there are primarily two sides to the condition relating to the knowledge of an injured party. On the one hand, the injured party must have the information necessary to make it possible to bring an action for damages, including information regarding the identity of the perpetrator, the existence of the infringement and the information necessary to determine the harm suffered as a result of the infringement concerned. On the other hand, the document containing such information must produce specific legal effects for undertakings that have participated in the cartel and for injured parties, as well as for a national court before which the action for damages is brought.
57. That being so, the Court also pointed out in the judgment in Heureka that ‘it cannot be ruled out that the elements necessary for bringing an action for damages may be known to the party injured by an infringement of the competition law provisions well before the publication in the [Official Journal] of the summary of a Commission decision’. (35)
58. However, that is not the situation in the present case.
59. It follows that it is necessary to establish at what point in time the injured party could have available information: (a) which is sufficient to bring an action for damages and which best serves the objectives of EU competition law, including the right to obtain compensation for the harm suffered; (b) which enjoys the presumption of legality, thus corresponding to the requirements of legal certainty and the principle of effectiveness; and (c) which has probative value before national courts, which is similar to that attributed by the EU legislature to Commission decisions.
(a) Information which is sufficient to bring an action for damages and which best serves the objectives of EU competition law, including the right to obtain compensation for the harm suffered
60. As the Court has pointed out, ‘disputes concerning infringements of the rules on competition law are characterised, in principle, by information asymmetry to the detriment of the injured party, which makes it more difficult for that party to obtain that information than for the competition authorities to obtain the information necessary for exercising their powers to apply competition law’. (36)
61. For the purposes of private enforcement actions, such information is sufficient ‘when the injured party knew [in particular] 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 infringer’. (37)
62. When filing the claim before the national court, an injured party can obtain the necessary information gathered by an NCA from the moment its decision is made available, irrespective of the means employed in order to make it public. However, it must be borne in mind that, if the NCA decision is not yet final and is subject to appeal before the competent courts, the facts and the participation in the alleged conduct will be contested. As argued by the Spanish Government at the hearing, in accordance with Spanish law, the facts characterising 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 infringer or infringers may necessarily change following the judicial review. Therefore, as long as the decision of the NCA is not final, the injured party does not have complete information in respect of all the elements that make it possible to bring a follow-on action for damages.
63. In my view, the lack of complete and authoritative information triggers two risk factors. First, in a case such as the one in the main proceedings, the injured party is, in effect, obliged to seek the suspension or interruption of the limitation period while awaiting the judicial review of the NCA decision to become final, which, as was confirmed at the hearing, is both costly and time-consuming. (38) Secondly, the injured party risks becoming liable to pay the legal costs of the proceedings if unsuccessful or partially unsuccessful due to changes brought about by the judicial review. That is liable to discourage injured parties from pursuing private enforcement actions and to impair the full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 thereof. (39)
64. It follows from the Spanish national case-law (of the Audiencia Provincial de Madrid (Court of Appeal, Madrid, Spain) (40)) that, for those injured by such anticompetitive behaviour (that is to say, in particular, consumers), bringing a legal action before the NCA decision becomes final entails ‘the risk of automatic failure of the claims filed’ in the event of revocation of the decision, which has the consequence of the relevant court ordering the injured parties to pay the costs. In this sense, the Court held in the judgment in Tráficos Manuel Ferrer that if a 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’. (41)
65. Moreover, the order for reference cites case-law of the Tribunal Supremo (Supreme Court), (42) according to which limitation periods must be interpreted restrictively because they are based not on principles of strict justice, but on the principles of legal certainty and the presumption that the exercise of a party’s right to bring an action has been waived. Therefore, according to that case-law, the principle of indemnity requires knowledge of the full extent of the harm. Thus, a parallel should be drawn with cases of personal injury, where such knowledge arises not at the moment when the injury is suffered, but only after the injury has stabilised and the after-effects of the injury have been fully determined.
66. That being said, the Court has ruled that the injured party has all the information to bring an action ‘irrespective of whether or not the Commission decision at issue has become final’. (43) Thus, the Court has not required that the harm be known to its full extent in order to compensate for the asymmetry of the knowledge of the injured party and that of the infringer. Instead, the Court has relied on another balancing factor, namely the legal consequences which an act of an institution of the European Union produces.
67. Consequently, I take the view that, for the purposes of follow-on actions, the injured party has the right to bring an action, not on the basis of any official document that contains the relevant information, but only where the injured party can rely on a decision that is capable of producing specific legal effects. It is only at that point that the dies a quo of the limitation period should be established. In other words, in order to compensate for the consequences of the asymmetry of information and in the light of the principle of effectiveness, the injured party should have available information, which, although not complete, is reliable and serves the purpose of legal certainty.
(b) Information which enjoys the presumption of legality, thus corresponding to the requirements of legal certainty and the principle of effectiveness
68. Acts of the EU institutions are, in principle, presumed to be lawful and, therefore, ‘produce legal effects as long as they have not been annulled or withdrawn’. Thus, ‘all persons subject to EU law [must] recognise the full effectiveness of those acts until such time as their illegality has been established by the [EU Courts]’. They must also ‘respect their enforceability until such time as [an EU Court] has decided to stay their enforcement’. (44)
69. At the same time, according to the referring court, under national legislation, the judge hearing an action for damages brought following a decision of the CNMC, which has not yet become final because it is the subject of an action for annulment, cannot be bound by the finding of the existence of the infringement concerned until such time as that decision becomes final. It follows that the EU act (the decision of the Commission) and the decision of the NCA – before those acts become final – produce different legal effects that are not negligible.
70. The Court’s case-law has already addressed the effects, on follow-on actions for damages, of decisions of NCAs finding an infringement of competition rules, and which have become final following judicial review.
71. It follows, in essence, from paragraphs 62 and 63 of the judgment in Repsol Comercial de Productos Petrolíferos, (45) that where an NCA has issued a decision finding an infringement of the competition rules, which has become final following judicial review, and where Article 9 of Directive 2014/104, which governs the binding effects of such decisions, is not ratione temporis applicable, that finding is presumed to be valid for the purposes of an action for damages relating to the same infringement, until proof to the contrary is adduced by the defendant.
72. Such a presumption is not applicable to cases such as the one in the main proceedings in which, although the decision of the NCA is published on the website of that authority, it has not yet become final. Indeed, it appears that, in such cases, that decision can only serve as an indication of the existence of the infringement concerned since it has no binding effect on the national court before which an action for damages has been brought. (46)
73. Given that the scope of the NCA decision can substantially change in the course of the court proceedings and, according to the referring court, the finding of the existence of the infringement in that decision is not binding on the national court until such time as that decision becomes final, (47) it is only that ‘final stage of the public enforcement of Article 101 TFEU’ (48) which has characteristics that ‘[make] it possible to establish clearly, precisely and transparently when the limitation period starts to run, both for the undertakings which participated in a cartel and for the injured parties’. (49) To my mind, any other solution would put the injured party in a significantly less favourable position than that of the infringer or infringers, even more so in cases where the length of the limitation period is too short vis-à-vis the usual time needed for judicial review of the NCA decision. (50)
74. As Advocate General Jääskinen pointed out, ‘due account needs to be taken of Article 19(1) TEU, and the extent to which it supplies a supplementary guarantee to the principle of effectiveness. Pursuant to Article 19(1), Member States are bound to provide remedies “sufficient to ensure effective legal protection in the fields covered by Union law”. In other words, in the light of that Treaty provision, the standard of effective judicial protection for EU based rights seems to be more demanding than the classical formula referring to practical impossibility or excessive difficulty. In my opinion this means that national remedies must be accessible, prompt, and reasonably cost effective’. (51)
75. In this context – and also given the fact that limitation periods constitute a restriction of the injured parties’ rights, and must therefore be interpreted in a manner that ensures the required accessibility, promptness and cost effectiveness – the Court should give precedence to the solution which is favourable to the pro actione principle.
76. Having said that, it is also important to seek to balance the interests of the injured party with those of the other parties to the action for damages. It is apparent from the information in the file before the Court that, under Article 90(3) of Law 39/2015 on the common administrative procedure of public authorities, (52) the enforceability of decisions of the CNMC is automatically suspended from the moment the injured party concerned indicates an intention to bring legal proceedings against such decisions – until the decision concerned becomes final. The suspension could be lifted by a court only by way of an express decision in proceedings for interim measures.
77. Although it may be argued that a solution whereby the dies a quo starts to run only after the decision of the NCA has become final prolongs the period of uncertainty and delays the final resolution of the action for damages, it is apparent from the information referred to above that that delay is directly linked to the judicial review of the NCA decision. During that review, the status of the undertaking in question is put on hold and, in that regard, it may also be beneficial to the infringer’s defence in an action for damages to wait until the NCA decision is final. In any event, the definitive nature of the status of the infringer would complement the effective application of the principle of legal certainty.
78. It follows that the dies a quo of the limitation period that is set on the date the NCA decision becomes final is more favourable to legal certainty and the principle of effectiveness in actions for damages and, in principle, that solution benefits both the applicants and the defendants. Indeed, it should be pointed out that legal certainty is precisely the very purpose of the imposition of limitation periods.
79. In its observations the Commission argues that starting the limitation period either (i) when the CNMC decision is published, even though it is appealed and not yet final, or (ii) when that decision becomes final, is capable of meeting the requirements imposed by EU law.
80. Based on my analysis above, I consider that solution (i) risks compromising the objectives of Article 101 TFEU and the principle of effectiveness with respect to the successful operation of private enforcement in the European Union.
81. If that solution were followed, the dies a quo would be set at the date of publication of the CNMC decision on that authority’s website (15 September 2015). The one-year limitation period, which was then applicable in Spain, would start to run and would expire before the actual date for the transposition of Directive 2014/104 (27 December 2016). That would imply that Article 10 of that directive, which sets out the rules on limitation periods, would not be applicable in the case in the main proceedings and the injured party would not be capable of relying on the extended limitation period of five years as provided for in Article 10(3) of that directive.
82. It follows from the Court’s case-law that ‘if the limitation period, which starts to run before the completion of the proceedings following which a final decision is made by the [NCA] or by a review court, is too short in relation to the duration of these proceedings and cannot be suspended or interrupted during the course of such proceedings, it is not inconceivable that that limitation period may expire even before those proceedings are completed. In that case, any person suffering harm would find it impossible to bring actions based on a final decision finding an infringement of EU competition rules’. (53)
83. The referring court and Nissan raise the possibility of suspending the action. (54) However, I consider that that possibility does not appear decisive in the present case, in so far as it is not automatic, it must be requested by the applicant and it involves the payment of various fees. Moreover, the court has a margin of discretion allowing it to decide whether or not to grant the suspension of the proceedings. I would point out that an application to suspend the action for damages can only be made after the action has been brought, which implies that the action must be brought within the limitation period in the first place. It follows, as CP and the Spanish Government argued, that the suspension of the action does not seem to be an appropriate solution in the present context in terms of legal certainty and the need for national remedies to be ‘accessible, prompt, and reasonably cost effective’. (55) In addition, such a solution does not take account of the fact that bringing actions for damages requires, in principle, a complex factual and economic analysis which, as a general rule, requires a certain amount of time. (56)
84. It follows that the interpretation to the effect that the dies a quo is established on the date on which the CNMC’s decision becomes final is the only one that satisfies the requirements of the principles of legal certainty and the effectiveness of follow-on actions for damages.
(c) Information which has probative value before national courts, which is similar to that attributed by the EU legislature to Commission decisions
85. To begin with, it should be noted that, for the purposes of actions for damages for infringements of EU competition law, the EU legislature clearly attaches a probative value to Commission decisions that is different from that attached to the decisions of NCAs as far as the national courts are concerned.
86. The judgment in Heureka (paragraph 74) clearly points out the different legal regimes applicable to NCA decisions, on the one hand, and those of the Commission, on the other: ‘according to 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 102 TFEU, which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. Article 16(1) does not require the Commission’s decision to have become final in order for the national court to be obliged to comply with it. Article 16 differs in that respect from Article 9 of Directive 2014/104, [(57)] which ascribes probative value to decisions of [NCAs] only where those decisions are final. That difference between those two provisions is justified precisely by the binding nature of decisions of the EU institutions’ (emphasis added) as well as by the primacy of EU law. (58)
87. As Advocate General Kokott explained in Cogeco, (59) ‘prior to the start of application of Article 9 of Directive 2014/104, a binding effect in proceedings before national courts was to be accorded under EU law only to decisions of the European Commission. This particular binding effect, which follows from Article 16(1) of Regulation No 1/2003 and from the Masterfoods case-law, [(60)] is founded on the key role of the Commission in shaping competition policy in the European internal market and ultimately also on the priority of EU law and the binding nature of rulings given by EU bodies. It cannot be extended in the same way to the decisions of [NCAs] unless the EU legislature expressly provides for this, as has been done for the future with Article 9 of Directive 2014/104.’
88. The above consideration is also illustrated by the fact that, in relation to Commission decisions, the fine is imposed on and payable by the infringer immediately, whereas it is apparent from the information in the file before the Court that, in the case of CNMC decisions, fines are, in general, not paid until the final confirmation of the sanction by the national courts. (61)
89. It follows that there is a clear difference between the circumstances in the case which gave rise to the judgment in Heureka and those in the present case. Moreover, those differences are not merely formal, but substantive and impact the essence of the rights of the parties concerned.
90. Given the fact that, under Regulation No 1/2003, national and EU enforcement of EU competition law must provide equal footing for the parties concerned, I would invite the Court, in the present case, to adopt an approach which is inspired by the spirit of the judgment in Heureka, but – contrary to the Commission’s approach – not one that would simply ‘copy and paste’ that approach in the present case. This is a fortiori so due to the information asymmetry, (62) which is to the detriment of the injured party, and thus the situation of injured parties should not be disadvantaged further in follow-on actions, which are based on NCA decisions compared with those based on Commission decisions.
91. Finally, the issue of making the information publicly known should be addressed.
92. In relation to the ‘publication’ element of the decision on the CNMC’s website, it appears from the documents before the Court that, under Spanish law, publication on that website is not a requirement for the decision’s legal effectiveness or validity and it is not a legal means of making that decision public under Spanish law.
93. In particular, as the Spanish Government pointed out – for the purposes of establishing the dies a quo of the limitation period – the publication of the CNMC decision on the official website cannot be equated with the publication of the summary of the Commission’s decision in the Official Journal. It appears from the information in the file before the Court that: (i) the CNMC website is not an official government gazette akin to the Official Journal, and the publication of NCA decisions is, under the applicable national law, not a legal requirement for their effectiveness or validity; and (ii) in the case in the main proceedings, the decision of the CNMC was notified individually to the persons concerned as part of the sanction procedure, and it is on those notifications that the legal effects of the decision with regard to those persons depend, and not on the publication on the website. (63)
94. It is true that a national court could take the view that the publication of the decision on the CNMC’s website appears to be sufficient for the injured parties to obtain the information necessary for bringing an action for damages. However, it follows from the foregoing considerations that in view of the differences in relation to the legal effects of the official publication (the Official Journal or the national official gazette), on the one hand, and the informative publication (an NCA’s website), on the other, the dies a quo should be established only once the decision has probative value before the national courts, which is similar to that attributed by the EU legislature to Commission decisions, that is to say, when the CNMC decision becomes final.
4. Answer to the second and third questions referred
95. In the light of the foregoing, I propose that the Court answer the second and the third questions to the effect that Article 101 TFEU and the principle of effectiveness must be interpreted as not precluding national legislation, as interpreted by the relevant national courts, which provides that the limitation period – applicable to actions for damages for an infringement of the provisions of EU competition law, established by a decision of the NCA (follow-on action for damages) – does not start to run before that decision has become final, where appropriate, after its confirmation by the relevant national courts.
V. Conclusion
96. I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Juzgado de lo Mercantil Zaragoza n.° 1 (Commercial Court No 1, Zaragoza, Spain) as follows:
Article 101 TFEU and the principle of effectiveness
must be interpreted as not precluding national legislation, as interpreted by the relevant national courts, which provides that the limitation period – applicable to actions for damages for an infringement of the provisions of EU competition law, established by a decision of the national competition authority (follow-on actions for damages) – does not start to run before that decision has become final, where appropriate, after its confirmation by the relevant national courts.