Effects Of Final Judgments On Competition Law

• Published date: 13 November 2023
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: Cuatrecasas Abogados
• Author: Ms Esther de Félix Parrondo, María Pérez Carrillo and Rosa Maldonado

In 2001 and 2009, Repsol was sanctioned by the Competition Defense Court and the National Competition Commission (now the CNMC), respectively, for fixing the retail prices of fuel within the framework of its contractual relations with numerous Spanish service stations.

Based on these sanctions, the owners of one of the service stations that had entered into exclusive supply contracts with Repsol brought legal action for the damages allegedly caused by those contracts. Specifically, the plaintiffs brought (i) an action for nullity of the contracts entered into with Repsol for having fixed the retail price of the fuels in question; and (ii) an action for damages.

Madrid Commercial Court No. 2, which was hearing the case, referred two questions to the Court of Justice of the European Union ("CJEU") for a preliminary ruling, which were recently resolved in its judgment dated April 20, 2023 (Case C-25/21).

The CJEU clarifies that the nullity action brought by the plaintiffs under article 101(2) TFEU does not fall within the material scope of Directive 2014/104 (the Damages Directive), in that it is limited exclusively to actions for damages brought for infringements of competition rules and does not extend to other types of actions, such as nullity actions.

Regarding the temporal applicability of the Damages Directive to the action for damages brought by the owners of the service station, the CJEU recalls that article 9 of the Damages Directive establishes an "irrebuttable" presumption regarding the existence of an infringement of competition law for the purposes of an action for damages.

However, following its criterion established in the judgment of June 22, 2022 (Volvo and DAF Trucks, C-267/20), the CJEU concludes that this article constitutes a substantive provision; therefore, it cannot be applied ratione temporis, since both sanctioning decisions became final before the deadline for transposing the directive expired.

Regardless of the above, in this context, where two final decisions made by national competition authorities concur, the CJEU has confirmed the opinion of Advocate General, Mr. Giovanni Pitruzzella, who considers that the principle of enforceability and the requirement to ensure the full effectiveness of article 101 TFEU should oblige the civil court to attribute a prima facie evidentiary value to such a finding. Otherwise, if a competition authority's final decisions were not recognized as having any effect, it would become excessively...