The temporal application of Directive 2014/104 on actions for damages for infringements of competition law has again given the Court of Justice of the European Union a hard time, which ruled in July 2022 in the Volvo and DAF Trucks judgment (C-267/20). The stakes are high: the wider the temporal scope of the directive is, the easier it is for the applicant to prove the existence and the amount of the harm.
On the one hand, the Court states that the provisions relating to the limitation periods (Article 10), as well as the one presuming that cartel infringements result in harm (Article 17(2)), are substantive. Since substantive provisions do not apply retroactively, in accordance with Article 22(1), national measures adopted pursuant to such provisions do not apply to situations that have arisen before the expiry of the time limit for the transposition. Even if the temporal reference point is always the same (that is to say the expiry of the time limit for the transposition of the directive), the Court analyses the legal situation differently depending on the respective provisions.
To determine if Article 10 on limitation periods shall apply, the Court uses the starting point and the limitation period of the old national rules, i.e. before the entry into force of the national transposing legislation. If such limitation period has not elapsed before the date of expiry of the time limit for the transposition, which is the case here, then the action falls within the temporal scope of Article 10, which is therefore applicable.
With regards to Article 17(2), the Court observes whether the infringement of competition law which caused the damage has ceased before the expiry of the time limit for the transposition. If this is the case, as here, the situation has already become definitive before the expiry of the time limit for the transposition, preventing the claimant from relying on the presumption of harm established in Article 17(2).
On the other hand, the power, pursuant to Article 17(1), for national courts to estimate the amount of harm is not substantive according to the Court, but merely procedural, like any rule relating to the burden and standard of proof. Thus, in accordance with Article 22(2), only actions for damages brought after the entry into force of the directive may rely on of Article 17(1).
Comment: The application ratione temporis of the provisions of Directive 2014/104 is a challenging task, given the lack of clarity in Article 22(1). The defective drafting of this article does not help the European judges, subject to criticisms due to the complexity of their judgments, as in the Cogeco case.
For instance Article 17, the Court considers that the rules on the burden and standard of proof referred to in paragraph 1 are purely procedural and not substantive, unlike the presumption set out in paragraph 2. But isn’t the purpose of a presumption to reverse the burden of proof? Paradoxically the Court first allows the applicant to bring his action for damages but then denies him the benefit of the presumption of harm.
Finally, although complex and open to criticism, the Volvo and DAF Trucks judgment at least provides a convincing starting point of the limitation period. Indeed, under the old Spanish law, the limitation period began to run from the moment when the circumstances giving rise to liability became known to the claimant. In the case of the truck cartel, whose participants have been fined by the European Commission in 2016, the relevant date is, according to the Court, the day on which the summary decision was published in the Official Journal of the European Union. Indeed, such a summary contains quite detailed information on the case and is available in all official languages of the European Union, as opposed to a simple press release.
Marco Amorese
Jeanne Deniau