A Spanish Regional Court requests for an ECJ's preliminary ruling on procedures for claiming damages

By Patricia Linan, Candela Sotes

07-2020

The application of the transitional regime of the Damages Directive (No. 2014/104), of 26 November 2014, has created legal uncertainty regarding the statute of limitations of damages claims.

On 12 June 2020, the Regional Court of León referred questions to the European Court of Justice (ECJ) for a preliminary ruling on the possibility of the retroactive application of the provisions concerning the period of limitation to bring damages actions and the judicial assessment of the damages caused by anticompetitive infringements.

In this case, the companies AB VOLVO and DAF TRUCKS N.V. appealed against the judgement of the Commercial Court of León, in which they were held liable to pay a compensation of up to 15% of the price of the vehicles acquired by the plaintiff, which had been overcharged as a consequence of the truck's cartel. The Court considered that the 5-year limitation period and the faculty for judicial assessment of the damages set forth in Spanish Royal Decree-Law 9/2017, of 26 May 2017, transposing the Damages Directive, were applicable. This is explained by the fact that the national regulation was already in force on the date the action was submitted (on 1 April 2018).

However, the companies claim that the action for damages was time-barred, given that the 1-year period laid down in Article 1968 of the Spanish Civil Code for filing damages actions would be of application instead. They argue that the Damages Directive cannot be applied retroactively, as the anticompetitive practices under analysis ceased in 2011.

According to the companies, the 1-year period began to run from the date the European Commission published the official press release (on 19 July 2016) announcing the sanctions imposed in the truck's cartel case, in which the conducts and the participating entities were detailed. Therefore, the 1-year period had already ended when the action for damages was filed (but not since the publication of the Commission Decision on 6 April 2018). 

The Regional Court has now requested the ECJ to clarify whether the limitation of the retroactive effects of the substantive rules laid down in the Directive refers to the date on which the antitrust infringement took place, to the date on which it was sanctioned or to the date on which the action for damages was filed. Furthermore, it is questioned whether the rules on the period of limitation and the judicial assessment of damages fall under the consideration of substantive or procedural provisions.

The ECJ is expected to shed some light on what happens with the actions that had not yet expired at the time the Royal Decree-Law 9/2017 came into force and whether it would be possible to have extra time to reach the 5-year period foreseen under the existing regulation. In addition, the ECJ has been asked to explain if it is possible for the court to estimate the damages retroactively, a faculty that has become fundamental in certain proceedings due to the difficulty in quantifying the damage caused.

It should be noticed that this is not the first time that a preliminary ruling is submitted to the ECJ concerning the application of the Damages Directive. In 2019, the ECJ replied to the question referred by the Lisbon District Court in relation to the Cogeco Communications case (C-637/17) about the application of the Directive to an action brought after its enactment but before its transposition into national law. The ECJ concluded then that if Member States had decided that the procedural provisions would not apply retroactively, the actions filed after the adoption of the Directive but before its transposition into national law or the end of the period agreed for its implementation shall be still regulated by the national procedural rules that were in force before the transposition of the Directive.  

In the meantime, it remains to be seen whether the ECJ follows the same line on the preliminary ruling referred by the Regional Court of León.

For further information, the Court order which contains the questions submitted to the ECJ is available here (in Spanish).

For more information contact Patricia Liñán or Candela Sotés.