The possibility of third parties bringing EC antitrust damages actions - The Case of Spain and Finland
| Autor | Charlotte Leskinen |
| Cargo del Autor | Research assistant at the Instituto de Empresa Business School. Senior Research Officer at the Finnish Competition Authority (currently on leave) |
| Páginas | 35-76 |
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EC antitrust damages actions are a very topical issue at the moment and much has been written about this subject recently. The Commission published a Green Paper on Damages Actions for Breach of the EC Antitrust Rules1and the Commission Staff Working Paper2in December 2005 and it is currently preparing a White Paper as a follow-up to the Green Paper. The Green Paper and the Commission Staff Working Paper address the conditions for bringing damages actions for breach of the EC antitrust rules. They also identify obstacles to the current framework and present different alternatives to solve the problems related to the current system with a view to facilitating private enforcement of EC competition law.
One of the questions to be considered relates to standing for victims of anticompetitive agreements and conduct. In this context the possibilities of third parties bringing damages actions is of particular interest, as it is usually more difficult for them to prove the infringement than for a party to the agreement that restricts competition. Following the ECJ’s rulings in Courage v. Crehan3 and Manfredi4, it is clear that the Community right to
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damages also extends to these categories of claimants. However, as damages actions must be brought before national courts and these actions are governed by national procedural rules, in practice the possibilities for bringing EC antitrust damages actions vary from Member State to Member State.
The objective of this article is to examine the possibilities of third parties that have suffered harm as a consequence of a violation of the EC competitions rules bringing antitrust damages actions before the national courts in Spain and Finland. The article aims to define the principal obstacles or difficulties for third parties to bring such actions and to establish the main differences between these two legal systems. It will also examine whether the rules in Spain and Finland comply with EC law, and assess the consequences of the current state of play. Finally, the article will attempt to envisage possible solutions to ensure effective private enforcement of the EC competition rules with respect to third party claims.
The method used will be comparative and mainly based on an analysis of the relevant legal provisions and literature in the field, as the case law, in particular in Finland, is still very scarce. As to the scope of the article, it will focus on some of the main obstacles for bringing antitrust damages that competitors, undertakings active at different levels in the production or distribution chain, consumers, states, municipalities and autonomous regions face when they have suffered loss due to an anti-competitive agreement or conduct. This scope excludes claims from foreign states and the examination in detail of the difficulties in adducing evidence when the violator is based in or the infringement has occurred in another country.
The EC Treaty does not provide an express legal basis for damages for infringements of the EC competition rules. Instead, the existence of a Community right to damages has been established by the ECJ case law. In his opinion in Banks, Advocate General Walter van Gerven submitted that
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the right to obtain reparation for loss and damage sustained as a result of an undertaking’s infringement of the Community competition rules which have direct effect was based on the Community legal order itself5.
Nevertheless, the ECJ did not follow the Advocate General’s opinion. It was not until the ECJ judgment in Courage v. Crehan6 in 2001 that the court expressly declared that a Community right for damages for competition law infringements existed.
In Courage v. Crehan the ECJ held that former Article 85(1) [now 81(1)] and former Article 86 [now 82] EC produced direct effects between individuals and created rights for the individuals concerned which the national courts must safeguard. It then declared that any individual could rely on a breach of Article 85(1) [now 81(1)] EC before a national court and expressly stated that this even included a party to a contract that was restricting or distorting competition7. The existence of a Community right to damages for antitrust infringements was justified by the ECJ as being necessary in order to ensure the full effectiveness of Article 85 [now 81] EC and, in particular, the practical effect of the prohibition laid down in that provision. Accordingly, any individual may claim damages for loss caused to him by a contract or conduct liable to restrict or distort competition8. Although the ECJ only referred to Article 81 in its ruling, it is clear that a victim of anticompetitive conduct in breach of Article 82 EC would also be entitled to claim damages for the harm caused to him by the abuse of a dominant
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position9, since the full effectiveness of Article 82 EC (as is the case for Article 81 EC) would be put at risk if any individual could not claim damages for loss caused to him by an abusive conduct.
From the wording of the Courage v. Crehan judgment, it is clear that the right to bring antitrust damages actions also extends to third parties harmed by an anti-competitive practice, although the ECJ does not expressly mention them in its ruling. In the recent joined cases Manfredi10, the ECJ was specifically asked in a preliminary question by an Italian court whether third parties could claim damages for the harm suffered as a result of an agreement or practice prohibited by Article 81 EC. Referring to its ruling in Courage v. Crehan and the significance for the full effectiveness of Article 81 EC of the right of any individual to claim damages for loss caused by an anti-competitive contract or conduct, the ECJ confirmed that:
"any individual can claim compensation for the harm suffered where there is a causal relationship between the harm and an agreement or practice prohibited under Article 81 EC" 11 .
As long as the person claiming damages can establish the causal relationship between the harm and the restrictive practice or conduct, it would hence appear that he would be entitled to bring an antitrust damages action.
As damages actions must be brought before the national courts, these actions are governed by national rules. However, the procedural rules in question may not lead to a situation where it would be impossible for individuals to rely on rights conferred on them by Community law. Instead, it follows from the primacy of EC law, established by the ECJ in
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Costa v. ENEL12 and later confirmed, for instance, in Simmenthal13, that national rules which conflict with a Community rule must be set aside. Whenever the Community rules produce direct effects, i.e. may be directly relied upon by individuals, and confer rights on individuals, national courts therefore have an obligation to safeguard those rights14.
The next section will examine the direct effect and primacy of EC competition law, as it is relevant in order to establish the extent to which national courts must allow damages actions for competition infringements.
2.2.1 BRT v. SABAM
It is settled case law that Articles 81 and 82 EC have direct effect. This was first established by the ECJ in BRT v. SABAM in which the Court stated that as these articles "tend by their very nature to produce direct effects in relations between individuals, [they] create direct rights in respect of the individuals concerned which the national courts must safeguard"15.
Moreover, in Guérin automobiles v. Commission, the ECJ held that any undertaking that has suffered damages as a result of a restrictive practice may rely before the national courts on the rights conferred by Article 85(1) [now 81(1)] and Article 86 [now 82] EC16. As a consequence, individuals are entitled to rely on Articles 81 and 82 EC before national courts to claim damages for harm caused by antitrust violations17.
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The supremacy and direct effect of EC competition law mean that national courts may not take conflicting decisions on agreements or practices which may subsequently be the subject of a Commission decision18. Furthermore, in Masterfoods the Court underlined that this obligation is even more important when national courts rule on competition matters that are already the subject of a Commission decision19.
2.2.2 Obligation to cooperate under Article 10 EC
Member States have an obligation to ensure the effective enforcement of Community law, which is based on the obligation to cooperate under Article 10 EC and the principle of equivalence and the principle of effectiveness. Under Article 10 EC Member States must take all appropriate measures to ensure the fulfilment of Treaty obligations and must abstain from any measures that...
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