Competition Litigation 2019

1 General

1.1 Please identify the scope of claims that may be brought in your jurisdiction for breach of competition law.

For the purposes of this discussion, we will refer to claims that can be brought before the General Court and the Court of Justice of the European Union (hereafter the "European Court of Justice") (together the "European Courts") or the national courts of the European Union (hereafter "EU") Member States in general. The scope of claims that may be brought before the national courts of the EU Member States for breach of EU competition law (i.e., violation of Articles 101 and/or 102 of the Treaty on the Functioning of the European Union (hereafter "TFEU")) includes: (i) actions for a declaration of nullity of contractual arrangements that are contrary to EU competition law; (ii) interim measures (including cease and desist orders in relation to conduct violating EU competition law); and (iii) actions for damages.

The scope of claims that may be brought before the General Court includes: (i) actions for the annulment of a European Commission (hereafter "Commission") "act", defined as any Commission measure capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (Case C-60/81, IBM v Commission); (ii) actions for failure to act; (iii) interim measures and (iv) damages actions for excessive delay in proceedings before the EU courts. Appeals on points of law against the judgments of the General Court may be brought before the European Court of Justice. The EU courts have confirmed in many instances that only measures which produce binding legal effects such as to affect the interests of an applicant, by bringing about a distinct change in his legal position, may be the subject of an action for annulment under Article 263 TFEU. See in particular the European Court judgment of 20 December 2017 in Case C-364/16 P, Trioplast Industrier v Commission (and case-law cited), where the Court stated that "it is also apparent from settled case-law that only measures or decisions which seek to produce legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment. Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as 'acts open to challenge', in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced".

The European Court of Justice confirmed that an excessive delay in proceedings before the General Court is an actionable breach which can only be addressed by bringing a damages action before the General Court under...