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The case concerned a follow-on damages action brought against Nissan Iberia SA (Nissan) in March 2023. In 2015, the Spanish competition authority (CNMC) had found that Nissan and other companies had violated Article 101 TFEU and Spanish competition law by exchanging sensitive business data. The decision was published on the CNMC website on 15 September 2015. After a series of appeals, this decision was only confirmed by the Tribunal Supremo (Supreme Court of Spain) in 2021 (almost six years later) and thus became final.
Nissan then argued that the claim for damages was time-barred, as the relative limitation period of one year provided for in national law had already begun to run when the CNMC decision was published in 2015.
The ECJ therefore had to clarify whether such a national provision, which allows the limitation period to begin before a competition authority decision becomes final, is compatible with the principle of effectiveness or Article 10 of the Damages Directive.2
In its preliminary ruling, the ECJ addressed the following points in particular:
The ECJ clarified that the limitation period for actions for damages under competition law can only begin when the injured party is aware of all essential information or at least could have been aware of it. This necessarily includes:
the damage caused by it,
In the opinion of the ECJ, it cannot generally be assumed that the injured party will have obtained knowledge of this information before a relevant decision by a competition authority has become final. In addition, the ECJ requires that the information resulting from the final decision has been published in an appropriate manner.
With regard to the legal situation prior to the Damages Directive, the ECJ emphasised that national regulations which allow the limitation period to begin before a competition authority decision becomes final violate the principle of effectiveness. Such regulations make it considerably more difficult to enforce claims for damages, as injured parties would be forced to bring legal action before the legal basis for their claims has been established. The Court also commented on the possibility of interrupting or suspending limitation periods, e.g. through ongoing proceedings, settlement negotiations, etc., insofar as these do not sufficiently take into account the principle of effectiveness.
The ECJ found that Article 10 of the Damages Directive was applicable to the present case, as the limitation period had not yet expired in 2016 and the deadline for transposing the Directive did not expire until 27 December 2016. Furthermore, the Directive did not codify any new law, but rather reflected the existing case law of the ECJ on the interpretation of Article 101 TFEU as primary law and the principle of effectiveness as acquis communautaire.
A key aspect of the ECJ ruling concerned the difference between decisions of the European Commission and national competition authorities with regard to the start of the limitation period for follow-on damages actions under Article 101 or Article 102 TFEU. Article 16(1) of Regulation (EC) No 1/2003 plays a decisive role in this regard. This provision is intended to ensure the uniform application of EU competition law. According to this provision, decisions of the European Commission on infringements of Article 101 or 102 TFEU are binding on national (civil) courts. National courts may not issue decisions that contradict the findings of the EU Commission, whereby this binding effect already exists before the decision becomes final. This means that a decision by the EU Commission can potentially trigger sufficient knowledge even before it becomes final.
In contrast, decisions by national competition authorities do not have a comparable binding effect before they become final. In this case, the knowledge necessary for the limitation period to begin therefore only exists once such a decision has become final. Before this point in time, there is a lack of legal certainty required for bringing an action for damages.
This distinction has potentially significant consequences for the question of when "sufficient knowledge" within the meaning of the statute of limitations exists.
All Austrian supreme court case law on the commencement of limitation periods for follow-on actions for damages dates from before the Damages Directive became applicable or before the current legal situation (§ 37a KartG aF instead of § 37h KartG).
In the past, the Austrian Supreme Court (OGH) largely took the view in decisions by Austrian antitrust courts that the commencement of the limitation period requires comprehensive knowledge of the facts on the part of the injured party (5 Ob 123/12t). This cannot be assumed before the relevant final decision has been published (in this case, the Cartel Court's "KOG") (4 Ob 46/12m and 6 Ob 186/12i). However, this case law always emphasises that the circumstances of the specific case must always be taken into account.
The absolute limitation period pursuant to Section 37h KartG in Austria is not entirely uncontroversial under EU law. While Article 10 of the EU Damages Directive does not provide for a limitation period independent of knowledge, Recital 36 allows Member States to introduce absolute limitation periods, provided that they comply with the principle of effectiveness. However, in its (now established) case law, the ECJ has categorically rejected limitation periods for antitrust damages claims that are independent of knowledge.3 This could initially mean that the 10-year absolute limitation period would be contrary to EU law.
However, legal literature argues that the ECJ's case law on the dependence of limitation periods on knowledge would only apply to short limitation periods (1–3 years), which could make the 10-year period compliant with EU law. A differentiated view in line with the principle of effectiveness suggests that, in the case of follow-on claims, the injured party should have at least a full five-year period from the time they become aware of all relevant facts. This could mean:
The five-year relative limitation period only runs from the date on which the decision of the competition authority becomes final, without taking into account any previous periods.
In the case of the 10-year absolute limitation period, an interpretation in line with EU law could require that this be suspended accordingly. This would give the injured party a total of 10 years from the end of the competition infringement. From the date on which the decision becomes final, only the part of the 10-year period that has not yet expired would continue to run, instead of a new full period.
However, a rule whereby the 10-year period only begins to run from the date on which the decision of the competition authority becomes final is neither required by the principle of effectiveness nor compatible with the wording of the implementing provision.
In Case C-21/24 ("Nissan Iberia"), the ECJ clarified its case law on limitation periods in follow-on damages actions, stating that limitation periods only begin to run once all relevant facts are known, in principle only after a decision by a competition authority has become binding. A distinction must be made between decisions by national and EU competition authorities, because in the latter case, the date on which the decision becomes binding and the date on which it becomes final may differ. Consequently, the limitation period could begin to run in the case of decisions by the EU Commission even before they become final. However, national regulations that trigger the limitation period even before the corresponding binding effect could violate the principle of effectiveness according to Nissan Iberia v. . For the Austrian legal situation, this means that the 10-year absolute limitation period in particular would have to be interpreted in accordance with EU law. A final clarification by the courts is still pending, unless this question is resolved de lege ferenda beforehand.
[1] ECJ C-605/21, Heureka Group, ECLI:EU:C:2024:324; ECJ C-267/20, Volvo v DAF, ECLI:EU:C:2022:494.
[2] Whether the Damages Directive was applicable to the present case was also an issue in the case at hand.
[3] ECJ C-605/21, Heureka Group, ECLI:EU:C:2024:324; ECJ C-267/20, Volvo v DAF, ECLI:EU:C:2022:494.
Please note: This blog is for general information purposes only and in no way constitutes legal advice from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal advice. Binder Grösswang Rechtsanwälte GmbH accepts no liability of any kind for the content and accuracy of the blog.