ECJ rules on temporal applicability of the cartel Damages Directive and clarifies the statute of limitation in cartel damage cases
In its latest decision regarding the Trucks cartel the European Court of Justice (“ECJ“) once again clarified statute of limitation issues. Although the decision primarily dealt with the temporal applicability of the 2014 EU Damages Directive, it draws important implications for the interpretation of national limitation laws in cartel damage cases. Specifically, the ECJ confirmed its position taken in its 2019 Cogeco decision, and further strengthened the rights of the claimants. The court clarified that once the Commission’s (summary) decision was published in the Official Journal injured parties could reasonably be expected to recognize the circumstances giving rise to liability, meaning that – without proof of prior specific knowledge – limitation periods will only start at that point.
The court also stated that there was no general duty of care requiring injured parties to monitor the publications of the Competition Authorities for press releases relating to cartel decisions. Finally, it follows from the decision that longstop limitation periods which start to run without the injured party obtaining knowledge of the cartel or of the damage suffered do not comply with the principle of effectiveness.
I. Main proceedings: Trucks cartel litigation in Spain
The ECJ decision was issued following a request for a preliminary ruling brought by a Spanish court. The claimant, who had purchased trucks from Volvo and DAF, sought compensation for the harm suffered as a result of the anticompetitive practices engaged in by trucks manufacturers. The defendants rejected the claim, arguing that it was time-barred and that the claimant had not proven a causal link between the infringement and the alleged damages. They maintained that it was not the EU Damages Directive that had to be applied (granting a five-year limitation period and a presumption of damages), but the former Spanish law, that provided only for a one-year limitation period.
Hence, the central question was whether the Directive was applicable to an action for damages which, although relating to an infringement which ceased before the Directive’s entry into force, was brought after the provisions transposing the Directive into national law entered into force. What made this particularly relevant was the fact that the Directive had only been transposed into Spanish law five months after the time limit for the transposition.
II. The ECJ’s findings
Substantive and non-substantive provisions of the Damages Directive
The ECJ preliminarily noted that the Damages Directive itself determines its temporal application, thus distinguishing between substantive and non-substantive provisions. While the substantive provisions “do not apply retroactively” (Art. 22 (1); for the interpretation of this term, see next section), the non-substantive provisions “do not apply to actions for damages of which a national court was seized prior to 26 December 2014” (Art. 22 (2)).
A. Limitation periods
The ECJ stated that Art. 10 of the Damages Directive, which provides for a five-year limitation period, must be considered a substantive provision since it affects the enforceability of a subjective right. The temporal applicability therefore depends, in accordance with Art. 22 (1), on whether the situation at issue arose before the expiry of the time limit for transposition (27 December 2016) or whether it continued to produce effects after that point. The key question the court considered therefore was, whether the limitation period applicable under the (former) national law had elapsed at the date of expiry of the time limit for transposition.
As this is a question of national law, the ECJ focused on establishing the standards for interpreting national limitation provisions according to European law, in particular the principle of effectiveness. Since the Spanish law linked the commencement of the limitation period to the knowledge of the injured party, the ECJ assessed when the claimant - in the absence of specific individual knowledge – would generally obtain knowledge of the circumstances giving rise to liability.
In its Cogeco decision, the ECJ had already pointed out that national legislation which lays down the date from which the limitation period starts to run, its duration and the rules for suspension must not undermine the full effectiveness of Articles 101 and 102 TFEU. The ECJ now highlighted that bringing an action for cartel damages requires complex factual and economic analyses, and that these disputes are characterised by information asymmetry to the detriment of the claimant. Relying on the principle of effectiveness, the court stated that “limitation periods applicable to actions for damages for infringements of the competition law provisions […] cannot begin to run before the infringement has ceased and the injured party knows, or can reasonably be expected to know, the information necessary to bring his or her action for damages”. The ECJ further specified the information considered necessary in this sense, namely:
- the existence of an infringement of competition law,
- the existence of harm,
- the causal link between that harm and that infringement and
- the identity of the perpetrator.
While the ECJ had already outlined this in general in Cogeco, it now went even further by clarifying that this information was not yet available with the publication of the press release relating to the Commission’s decision, but only with the publication of the Commission’s (summary) decision in the Official Journal, thus significantly shifting the start of the limitation period. The ECJ noted that press releases generally contain less detailed information about the circumstances and anticompetitive conduct, and are not necessarily published in all official languages. Furthermore, press releases are, in general, intended for the press and the media, and not to produce legal effects vis-à-vis third parties.
B. Quantification of harm
Regarding the temporal applicability of Art. 17 of the Damages Directive, the ECJ made a distinction between the right to estimate the amount of damages (Art. 17 (1)) and the presumption of damages (Art. 17 (2)), classifying the former as a procedural and the latter as a substantive provision. Whereas the ECJ declared the right to estimate damages applicable to all actions brought after 26 December 2014 (Art. 22 (2) of the Directive), it significantly limited the temporal scope of the presumption of damages. As with the limitation period, the court also focused on whether the situation at issue continued to produce effects after the time limit for the transposition of the Directive. In this case, however, it referred to the existence of the cartel, since that was the fact giving rise to the presumption of damages. As a result, the ECJ stated that the presumption of damages was only applicable to claims relating to cartels that lasted beyond 27 December 2016. Given the duration of the Commission’s proceedings, it should take considerable time before injured parties will actually be able to benefit from the presumption of damages provided for in the Damages Directive. Thus, for most of the cartel damage claims currently being litigated, it must be proven individually that damage has in fact occurred.
III. Implications for national limitation laws
The ECJ decision has significant implications for national limitation laws.
A. Limitation periods do not start before the decision has been published
The ECJ defines the concept of knowledge in terms of limitation laws, thus determining the earliest beginning of (knowledge-based) limitation periods. This means that national limitation periods cannot start before the Commission’s (summary) decision has been published in the Official Journal of the European Union. Since the ECJ has based this determination on the principle of effectiveness rather than on the rationale of the EU Damages Directive, it applies regardless of whether the claim is caught by the Directive or is subject to former national limitation laws. Although in its reasoning the ECJ ultimately relied on the specific content of the press release about the Trucks cartel, this is not to be assessed on a case by case basis. This is because the ECJ emphasized that there is no general duty of care on the part of injured persons requiring them to monitor the publication of such press releases. Hence, even if a press release is exceptionally detailed, its publication as such would not imply that the claimant could reasonably be expected to know all relevant circumstances. The defendant would also need to prove that the claimant had knowledge of the press release.
With respect to the Trucks cartel, the decision postpones the start of the limitation periods by at least eight months: while the press release had already been published on the day of the decision in July 2016, the (decisive) summary of the decision had not been published until April 2017. For some jurisdictions, this might only have a minor impact, because the rules on suspension (Art. 10 (4) of the Damages Directive) may postpone the start of the limitation period anyway. Under German law, however, the statute of limitations is delayed even further due to the decision, as the limitation period only starts to run at the end of the year in which the claimant obtained knowledge (Sec. 33h (2) ARC). This means that under German law claims will not become time-barred until the end of 2022.
B. Longstop limitation periods do not comply with the principle of effectiveness
The ECJ decision will have even more far-reaching impact in those jurisdictions which additionally provide for longstop limitation periods (i.e., limitation periods that start regardless of any knowledge, thus setting an absolute time limit for claiming damages). Although the Damages Directive only establishes a knowledge-based limitation period, it allows member states to introduce longstop limitation periods as long as it “does not render practically impossible or excessively difficult the exercise of the right to full compensation”. This clearly refers to the principle of effectiveness which, as the ECJ now has confirmed, requires that limitation periods for cartel damage claims do not start before the claimant knows the circumstances giving rise to liability. It is evident that longstop limitation periods which start to run regardless of any knowledge do not comply with this understanding of the principle of effectiveness.
There is an obvious inconsistency between the ECJ’s decision and the rationale of the Damages Directive which presupposes that there can be longstop limitation rules compatible with the principle of effectiveness. It is this inconsistency that raises doubts as to whether the decision will put an end to any longstop limitation period. However, the decision makes it clear that longstop limitation periods must in any case be interpreted in conformity with European law to ensure that they do not make it in practice impossible or excessively difficult to claim damages.
This is where the second deduction from the principle of effectiveness the ECJ made becomes relevant. The court stated that because of the principle of effectiveness, any limitation period cannot start to run before the infringement has ceased. This is particularly relevant in German law, where under the former (non-harmonised) provision, the longstop limitation period started to run when the claim arises. In certain cases where cartels lasted over more than a decade, this could lead to damage claims becoming time-barred before the infringement had ceased or had even been discovered, leaving injured parties with no chance of ever filing a claim. While this risk has (coincidentally) not played out in the Trucks cartel cases due to a change in the statute of limitation which led to a restart of longstop limitation periods, in the case of other cartels, older claims have in fact never been enforceable if the absolute limitation period would apply. The ECJ’s ruling now clarifies this matter. Longstop limitation periods must be interpreted in accordance with the principle of effectiveness in such a way that the limitation period does not start to run before the infringement has ceased.
*Ann-Christin Richter is Deputy Managing Partner and Asja Zorn is an Associate in Berlin.
 Judgement of the European Court of Justice of 22 June 2022, C-267/20 – Volvo and DAF.
 Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions, OJ 2014 L 349, p. 1.
 Judgement of the European Court of Justice of 28 March 2019, C-637/17 – Cogeco Communications.
 Commission Decision of 19 July 2016, AT.39824 – Trucks, C(2016) 4673 final.
 Judgement of the European Court of Justice of 22 June 2022, C-267/20 – Volvo and DAF, para. 30.
 Id., para. 35.
 Id., para. 46.
 Cogeco Communications, para. 47.
 Judgement of the European Court of Justice of 22 June 2022, C-267/20 – Volvo and DAF, para. 56.
 Id., para. 72.
 Id., para. 85, 98.
 Id.,, para. 102.
 Id., para. 70.
 Id., para. 68.
 Recital 36 of Directive 2014/104/EU.
 See Judgement of the European Court of Justice of 28 March 2019, C-637/17 – Cogeco Communications, para. 43.
 In 2020, the Amsterdam Court of Appeal – based on the ECJ’s Cogeco decision – refused to apply the ten-year longstop limitation period of Finnish law due to violation of the principle of effectiveness (Amsterdam Court of Appeal, 4 February 2020, 200.226.640/0 I, ECLI:NL:GHAMS:2020:194, 3.5.4).
 Judgement of the European Court of Justice of 22 June 2022, C-267/20 – Volvo and DAF, para. 56.