Private Enforcement #4 Overview of recent European Union national case law

4th Webinar of the « 5th Private Enforcement Conference » organised by Concurrences, in partnership with McDermott Will & Emery and Hexagon Economics, with Aymeric Discours (Partner, McDermott Will & Emery), Laurent Eymard (Founding partner, Hexagon Economics), Julie Klein (Professor, University of Rouen) and Sir Peter Roth (President, Competition Appeal Tribunal).

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Julie Klein

This webinar will revolve around five main topics: the binding parts of the European decisions, disclosure in damages cases, the difficulties raised by experts’ evidence, and more technical issues where there are a lot of recent decisions, mainly the statutes of limitation and the parent company liability.

Sir Peter Roth

As for the binding parts of European decisions, most of the actions brought before national courts are follow-on. The starting point for a follow-on claim is a decision of the European Commission. Article 16 of Regulation 1/2003 states that national courts cannot render judgments contrary to Commission decisions. There is a consensus that the operative part of a decision is binding. However, since most of the cartel decisions are decisions finding infringement by object, claimants also want to rely on other elements in the decision (e.g. the nature of the arrangements, the geographic area covered, the implementation of the agreement etc). As recalled by the Advocate General in Otis in 2012, there is no European case law on the scope of Article 16 in that matter.

In Trucks cases, the CAT has ruled that binding recitals are those that are the essential basis or the necessary support for a determination in the operative part or necessary to understand the scope of the operative part. Those are, in effect findings which could be challenged in an application for annulment. How does the settlement nature of a decision affect the analysis? The claimants argued that even if recitals are not binding according to Article 16, the English law principle of ‘abuse of process’ should make them bind because the facts in those recitals have been admitted in exchange for a discount in the fine. The Tribunal ruled that there can be an abuse of process as otherwise, the claimant would have to prove facts admitted as part of a settlement.

A separate question relates to factual findings of the General Court or the Court of Justice. In Servier (2019), the General Court overturned the Commission’s market definition and annulled the finding of abuse of dominance. Servier argued in its defence to the damages claim that if a practice had caused the price increase of a drug, the health authority should have mitigated the damage by switching to cheaper alternatives. Servier wanted to rely on the findings in the General Court judgment that there are substitutable alternatives for perindopril. This raised the issue of res judicata under EU law The English courts held that it is only the legal conclusion in the Court’s judgment (including market definition) that will be binding (but the case is on appeal to the UK Supreme Court).

As regards disclosure, many decisions are settlement decisions providing only little detail on how the cartel operated. Therefore, the claimants want to know more and seek disclosure of the documents that are in the Commission’s file. Further, as regards quantum the extensive duration over which economists seek relevant data is enormous. How to keep that disclosure proportionate in the meaning of Article 5(3) of the Damages Directive? Some experts want to look at products outside the cartel, or at another geographic market. In recent cartel damages cases, British judges have ruled that is appropriate first to determine what economic analysis should be used before ordering disclosure. Another aspect of the disclosure relates to the regime of potential Electronic Documents Questionnaires and the concrete application of Article 60(1)(b) of the CAT rules.

As for expert evidence, the UK does not use court-appointed experts but places great emphasis on the duty of the experts appointed by the parties to be independent. Further, the requirement for the two sides’ experts to produce a joint statement of points on which they agree and on which they disagree has been a practice for a long time and is very helpful.

As for limitation, according to English law, the primary limitation period for competition damages claims is six years from the day the damage occurred. But there is an important exception where there is “deliberate concealment”, which includes. a deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time. The starting point is when the claimant has discovered the concealment or could with reasonable diligence have discovered it. The UK does not provide for any interruption or suspension of the period.

Laurent Eymard

As for the binding parts of European decisions, it is important to ensure that what is considered binding in decisions still leaves room for a meaningful discussion about the causal link between the practices and the potential damage. Sometimes, there is a fine line between discussing the practices and discussing their effect on a particular claimant. In the CRT case in 2012, the Commission described a multitude of meetings and concluded that all were together a single and continuous infringement. Can the defendant argue that the transactions with the claimant were not covered by the cartel operations (e.g. the claimant purchased a specific type of tubes not discussed during the cartel meetings)?

This issue has become even more important with the introduction of the cartel damage presumption. In Schienenfreunde, the German Federal Court increased the bar to show that a cartel caused damage by rejecting the prima facie evidence approach. The Supreme Court favoured a ‘factual presumption’ approach, under which the judge must consider all factors while assessing the effects of the practices. This approach is consistent with the economic literature, according to which cartel effects should be assessed on a case-by-case basis.

As regards disclosure, it is a key issue for economic experts. There cannot be any meaningful assessment without access to the underlying data. Recent judgments show an increased flexibility and willingness to accept exchanges of highly sensitive data by national courts. In the Orange/SFR case, the claimant’s expert had used commercially sensitive data to estimate the damage and the Paris Commercial Court recognised the importance of such access and accepted an exchange of data within a secure data room.

There is still the difference between the UK and other jurisdictions regarding the moment of the exchange of data. In France or in the Netherlands, the discussion would occur after an expert report has been filled. When the discussion occurs before expert reports are filed, the question is what data is relevant to answer the question at stake. While the Damages Directive requires that national courts are allowed disclosure of relevant evidence, there are still significant discrepancies between the jurisdictions. Early discussions involving experts regarding what data would be relevant should be part of the standard toolbox of all courts in Europe.

There are many antitrust damage cases in which numerous economic evidence is submitted. European courts are increasingly dealing with complex pieces of empirical estimation. While there is significant convergence in Europe in the court’s ability to rely on expert evidence, there is still a lot of heterogeneity, especially when it comes to dealing with conflicting reports from the parties. As stressed by the English High Court in Britned v ABB and the District Court of Helsinki in Maitomaa/Maitokolmio/Valio, estimating the effect of a cartel or any other type of damage is not a purely mechanical process. Empirical estimations require the analysts to formulate assumptions about the counterfactual scenario and make choices regarding the proper way to model the relationship between prices and costs. In order to make informed decisions, courts must engage in an in-depth assessment of economic expertise. However, national courts have shown a different willingness to do so. British courts have developed the procedure of joint statement from the parties’ experts as a way to better highlight the points on which the judge will decide. Other aspects that could benefit from more convergence include the role of court-appointed experts, the need for defendants to offer alternative models and estimations, and reference to expert evidence from other cases.

Aymeric Discours

Over the last year, the statute of limitations has been one of the most discussed topics before French courts in damages proceedings. It results from the Doux decision of April 2019 (Paris Court of Appeal) and the SNCF Mobilités judgment of June 2019 (Paris administrative court) that the relevant starting point of the statute of limitations is the date on which the Commission made its decision public.

The Paris commercial court, in the Sanofi/CNAM judgement of October 2019, recalled that the date of the decision of the competition authority is not considered by law as an automatic starting point for the statute of limitation. The core principle is that the statute of limitation starts running when the claimant becomes aware, or should have been aware, of the facts enabling it to initiate damage proceedings. For the Paris commercial court, it is up to the court themselves to assess in concreto when the victim has known or should have been aware of the practices. In Sanofi/CNAM, it developed a precise analysis of the situation and based its decision on five elements: (1) the claimant closely monitored the relevant market, (2) some of Sanofi’s communication strategy was public, (3) Sanofi’s practices were described precisely in publicly available interim measures decisions, (4) the interim measures decision specified the practices were likely to qualify as denigration and abuse of dominance and (5) the CNAM was involved in the investigation before the competition authority. Thus, the CNAM could not ignore the practices, their consistency and the damage, and there was no reason for not setting the starting point of limitation before the final decision of the competition authority.

The CNAM argued the interruption of the statute of limitation based on ‘Loi Hamon’ of 2014 provides that the limitation period is interrupted by the proceedings before the competition authority. Yet, two theories clashed before the commercial court concerning the temporal application of the law. The answer of the Paris commercial court is clear: the Loi Hamon introduced a new cause of interruption of the statutes of limitation and it was only applicable to proceedings opened after its entry into force. In principle, a statute cannot be retroactive but there is an exception where the law is considered as interpretative. The first condition for that is the existence of a pre-existing law to be interpreted. This condition could be met: Article 2241 of the French civil code, according to which an application before a court interrupts the statutes of limitation, deserved interpretation. The second condition regarding the existence of controversy about the meaning of this pre-existing law could be met too.

Concerning the parent liability, there seems to be a general resistance trend throughout the EU to limit the impact of the CJEU Skanska ruling. Before the French competition authority, traditionally the subject was the undertaking and thus it has been considered that the infringement committed by a subsidiary can be imputed to its parent company (regardless of any involvement or even awareness of the parent company). This presumption was often limited to proceedings before national authorities. In private actions for damages, the legal basis is the standard tort liability regime relying on the personal liability doctrine. As in many cases, the Directive is not yet applicable, litigants continue to use the argument of personal liability.

In Skanska, the CJEU ruled that the concept of undertaking cannot have a different scope with regard to the imposition of fines by the Commission as compared with actions for damages. When looking at the recent decisions made both in Germany and in the UK, some courts explicitly dismissed arguments based on Skanska. In the UK, the High Court considered that in Skanska the ECJ only addressed the specific factual circumstances of the case. In Germany, the Mannheim District Court held that the personal liability of a parent company presupposes that the subsidiary complies with the instructions of the parent company. This is not the same concept of undertaking as the one based on capital holding. The Stuttgart District Court also held that it cannot be inferred from Skanska that liability for damages caused by cartel members should be extended to all companies which are somehow connected to them. This general trend can also be based on the words used in Skanska. First, the ECJ recalled that it was analysing a specific factual situation: the companies that participated in the cartel were voluntarily liquidated. Thus, the infringers no longer existed. Second, the ECJ specified that this solution is applicable in a case such as the one in the main proceedings.

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  • McDermott Will & Emery (Paris)
  • Hexagon - Economics
  • UK Competition Appeal Tribunal (London)
  • University of Rouen Normandy