Private enforcement for claimants injured by cartels not limited by regulatory arrangements on temporal scope
Late last year the CJEU ruled  on a preliminary issue related to an attempt by cartelist airlines to significantly restrict the temporal scope of the claims in air cargo cartel damages actions brought before the District Court of Amsterdam, Netherlands. Following the Opinion of Advocate General Michael Bobek issued in May 2021 , the CJEU ruled that the claimants could indeed pursue the full temporal scope of their claims as a result of the direct effect of Article 101 TFEU and Article 53 EEA Agreement.
The CJEU ruling was particularly interesting as it represented the latest – and in this case final – development in the thorny issue of whether claimants are able to rely on the direct effect of competition law to establish the national court’s competence, irrespective of the administrative enforcement of competition law.
These findings remain significant in a number of actions that are still to be adjudicated – beyond the ongoing air cargo cartel damages actions in the Netherlands – and given the increasing pace of private enforcement throughout Europe, we may expect to see them applied again before long in order for claimants to pursue the full temporal scope of their claims.
In the case at hand, British Airways, KLM and other major airlines are defending damages claims in connection with an air cargo cartel identified in the European Commission’s Airfreight decision of 2010 (later annulled by the EU General Court and supplemented with a re-adopted Commission decision in 2019). The cartel is alleged to have caused damages to shippers.
Damages are sought in relation to the period December 1999 to February 2006, in line with the overall duration of the cartel identified in the Commission’s decision. In finding a cartel, the Commission’s competence was however limited to conduct occurring after:
- 1 May 2004 in respect of EU-third country routes,
- 19 May 2005 in respect of routes within and between the EEA (not EU Member States) and third countries, and
- 1 June 2002 in respect of EU-Switzerland routes
(For simplicity, we refer to these dates and routes as the "Relevant Dates" and "Relevant Routes”.) That is because, before the Relevant Dates, the Commission did not have the implementing powers under the relevant regulatory arrangements to apply Article 101 TFEU and Article 53 EEA Agreement in respect of air transport on the Relevant Routes.
In this context:
- the referring District Court of Amsterdam considered that it is competent to apply competition law to the conduct in question on the Relevant Routes and for the periods prior to the Relevant Dates;
- the Opinion of AG Bobek sided with the referring District Court of Amsterdam; and
- the CJEU was asked to rule on whether the relevant regulatory regime denied national courts the authority to apply competition law to cartel conduct before the Relevant Dates in respect of the Relevant Routes.
Judgment of the CJEU
In its judgment of 11 November 2021, the CJEU mirrored the Opinion of AG Bobek and ruled that the entire regulatory arrangement of excluding the Relevant Routes from competition law in respect of the period prior to the Relevant Dates was limited to the administrative enforcement of competition law by the Commission. Accordingly, this should not restrict private enforcement before the national courts, including the referring District Court of Amsterdam.
In particular, according to the CJEU, the absence of a decision by the Commission establishing the existence of a cartel affecting trade between Member States prior to the Relevant Dates on the Relevant Routes “does not preclude [the Amsterdam District Court] from applying [Article 101 TFEU] to that conduct for the purposes of assessing whether there has been an infringement of that latter article and, where appropriate, ordering the payment of compensation in respect of any damage arising therefrom.” 
As regards the interpretation of Article 53 EEA Agreement, the CJEU pointed out that this provision prohibits the same anti-competitive conduct described in Article 101 TFEU and therefore concluded that it “must be interpreted in the same way.” Thus, the CJEU applied the above considerations mutatis mutandis to the interpretation of Article 53 EEA Agreement. 
The CJEU judgment shows that a decision by the Commission is neither a condition nor a limitation for the private enforcement of competition law. As a result of this judgment, the District Court of Amsterdam will have to authorise the claimants to pursue damages claims for the entire duration of the air cargo cartel from 1999 to 2006, rather than solely for the period after 1 May 2004 (for EU-third country routes), 19 May 2005 (for routes within and between the EEA), and 1 June 2002 (for EU-Switzerland routes).
The claimants will have to substantiate their claim before the Dutch court that the airlines infringed Article 101 TFEU and Article 53 EEA Agreement before the Relevant Dates. This should not be a very difficult task as the District Court of Amsterdam has already stated in the referral decision that it is clear from the investigative files of several competition authorities – among which the EU, Australia, Brazil, South Africa and South Korea – and court documents obtained from proceedings in Australia, Canada and the United States that the airlines formed a cartel and made price agreements for airfreight services worldwide in any event in the period between 2000 and 2006.
This is a significant decision, showing the differences in the national courts’ approach to adjudicating damages actions in EU-wide cartel cases. It also highlights the potential risks if national courts do not make use of preliminary ruling requests to the CJEU that aim to ensure a consistent application of EU law across all Member States. Indeed, the reason for the Amsterdam District Court’s preliminary reference was that both the High Court of Justice (England & Wales), in Emerald Supplies Ltd & Ors v British Airways Plc , as well as the Court of Appeal (England & Wales), in La Gaitana Farms SA & Ors v British Airways Plc , had come to a different conclusion in separate air cargo cartel damages actions brought in the UK, which ultimately saw these actions reduced to the period between 2004 and 2006. The English courts had not seen any reason to make a preliminary reference to the CJEU.
It should also be noted that the logic guiding the CJEU judgment in respect of the air cargo cartel has far-reaching implications for cartel damages actions more broadly, as there are other decisions where the Commission similarly found that its competence to apply competition law to certain cartels was curtailed by overreaching regulatory arrangements. For example, in the Commission’s Maritime Car Carriers decision of 2018, the Commission’s competence was limited to conduct occurring after 18 October 2006, even though several other competition authorities (including the US Department of Justice) identified a cartel between maritime car carriers going as far back as 1997.
We therefore anticipate that the victims of this cartel will also rely on the CJEU’s judgment to plead that the relevant regulatory regime does not deny the national courts the authority to apply competition law to cartel conduct before 18 October 2006. A similar approach is likely to be taken by claimants in future cartel damages cases, with defendants not able to hide behind regulatory arrangements on temporal scope.
 C‑819/19, Judgment of the Court (Second Chamber) dated 11 November 2021, ECLI:EU:C:2021:904.
 C-819/19, Opinion of Advocate General Michael Bobek dated 6 May 2021, ECLI:EU:C:2021:373. We reported about this Opinion in May 2021.
 C‑819/19, Judgment of the Court (Second Chamber) dated 11 November 2021, ECLI:EU:C:2021:904, paragraph 67.
 Ibid, paragraph 73.
  EWHC 2420 (Ch).
  EWCA Civ 37.