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General introduction to the legislative framework for private antitrust enforcement

Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), alongside Regulation 1/2003, provide the foundation of the legislative framework for private antitrust enforcement: these directly applicable provisions afford EU citizens the substantive right to bring damages claims for harm suffered as a result of a breach of EU competition law.

These legal instruments do not, however, address the procedural elements of private antitrust enforcement. Until the introduction of the Damages Directive, there was no single EU legal instrument addressing how antitrust claims could be brought in practice. As discussed in Section I, the Damages Directive set out to create 'a more level playing field for undertakings operating in the internal market' by stipulating the minimum requirements that Member States' national laws must meet.

Despite this, the extent of harmonisation should not be exaggerated. The Damages Directive does not address a number of important practical matters, such as costs and funding, collective redress and injunctive relief. Moreover, for issues such as jurisdiction and governing law, it is necessary to turn to other pieces of EU legislation (see further below). Even where the Damages Directive does address a particular issue, there is scope for divergence in the interpretation (and therefore the implementation) of its provisions. This is apparent in, for example, how certain Member States have chosen to treat the provisions relating to limitation.

i Limitation

The Damages Directive introduced a minimum limitation period of five years for cartel damages claims. This five-year period does not begin to run until the infringement ceases and a claimant is aware of (or can reasonably be expected to be aware of) the behaviour constituting the infringement; the fact that the infringement caused him or her harm; and the identity of the infringer.

The Damages Directive also includes a provision to suspend the limitation period during an investigation and any subsequent appeal process. This suspension must end no earlier than one year after the infringement decision has 'become final' (the meaning of which is open to some debate). The limitation period must also be suspended for the duration of any consensual dispute resolution process.

These provisions have significantly extended the limitation periods in a number of Member States. Pre-implementation, this was an area where there was wide divergence between Member States, both in terms of the length of limitation periods and the point at which they began to run. Compare, for example, the UK (six years after the cause of action accrued) with Spain (one year from the date the injured party discovered the harm). This meant that limitation periods often used to play an important role for claimants when selecting the jurisdiction in which to bring a claim.

Nonetheless, some divergence will remain. The Damages Directive does not prevent Member States from imposing limitation periods in excess of five years or absolute limitation periods. Moreover, different interpretations of ambiguous provisions will preserve divergence in this area (as well as others).

ii Jurisdiction

Under EU law, jurisdiction is regulated by the Recast Brussels Regulation, which applies to proceedings issued on or after 10 January 2015. Under the Recast Brussels Regulation, the default position is that a claim should be brought in the jurisdiction in which the defendant is domiciled, irrespective of where the contract was concluded or the harm suffered.

Where there are multiple defendants domiciled in different jurisdictions, a claimant can opt to bring a claim in any of those jurisdictions. A defendant may then become an 'anchor defendant', with others being joined on to that claim, provided that the claims are so closely connected that it is expedient to hear them together.

Claims may also be brought in the jurisdiction where the harmful event occurred (meaning either where the cartel was definitively concluded or where the claimant company has its registered office). Alternatively, if a claimant is a consumer, the claim may be brought in the jurisdiction where the consumer is domiciled.

The European Court of Justice (ECJ) has recently considered the application of jurisdiction agreements in competition law cases. In Apple Sales International, the ECJ held that the mere fact that a jurisdiction clause does not explicitly refer to claims based on competition law does not automatically prevent it from applying to actions for damages for abuse of dominance based on Article 102 TFEU. The decision contrasts with the ECJ's earlier decision in CDC, which held that an explicit reference to claims based on competition law is a prerequisite for applying a jurisdiction agreement to cartel-related claims based on violations of Article 101 TFEU.

iii Governing law

For events that gave rise to damage after 11 January 2009, the governing law applicable to a restriction of competition is determined by the Rome II Regulation. Under the Rome II Regulation, the governing law will be the law of the country where the market is affected. When the market is affected in multiple countries, a claimant may choose to base its claim on the law of the Member State where it is bringing its claim, as long as the market of that Member State is directly and substantially affected by the restriction of competition that gives rise to the claim. This enables claimants to have their case for antitrust damages heard by one court applying one law, even where more than one defendant is involved or damage occurred in several EU Member States.

The Rome II Regulation also allows parties expressly to agree a law to govern their non-contractual obligations, either before or after the occurrence of an event that gives rise to damage.

In recent years, Member State courts have considered the application of choice of law rules under the Rome II Regulation (and the respective national rules pre-dating the Rome II Regulation) in the context of competition law claims. This developing jurisprudence may result in a preliminary ruling request to the ECJ.