The CJEU concludes that final decisions of national competition authorities must be considered prima facie evidence
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 difficult to exercise the right to be compensated for infringements under article 101 TFEU, both in civil actions for damages and in actions seeking the nullity of those agreements or decisions expressly prohibited by that article.
Consequently, the CJEU has concluded that the existence of an infringement of competition law established in a final decision of a national competition authority "must be deemed to be proved by the plaintiff in the absence of proof to the contrary, thus shifting to the defendant the burden of proof established in article 2 of Regulation No. 1/2003, provided that the nature and the material, personal, temporal and territorial scope of the alleged infringements that are the object of the actions brought by the plaintiff correspond to those of the infringement established in that decision." The judgment adds that, if the coincidence is partial, the final decisions will be "an indication of the existence of the facts to which they refer" and, in the words of Mr. Giovanni Pitruzzella, they must be attributed the value of "prima facie evidence."
Similarly, in proceedings brought by a German railway company against German incumbent railway operator, DB Station & Service AG (Case C-721/20), the CJEU ruled that national courts "are required to take into account the decisions adopted by that body [the national regulatory body] as a factor of assessment," and to "give reasons for their decisions in light of the factual and legal assessments that those bodies made of the dispute before them."
Returning to the judgment handed down in the case against Repsol, in response to the second question referred for a preliminary ruling by Madrid Commercial Court No. 2, the Luxembourg-based court clarified that any declaration of nullity of this right will only affect the contractual provisions that are incompatible with article 101(1) TFEU. The agreement as a whole will only be declared void when the stipulations that are incompatible with the above provision cannot be separated from the rest of the agreement; the national court will have the power to assess these consequences under the rules of national law.
However, the CJEU concludes that a national court "cannot ignore" the final decisions of the national authorities, as recommended by Advocate General, Mr. Giovanni Pitruzzella.