European Court of Justice sets aside Portuguese rules time-barring a damages action

In this case, the Court considered that the Portuguese limitation rules (a short limitation period that may start before the victim knows who is liable and that cannot be suspended during the authority’s investigation) made it practically impossible or excessively difficult to obtain compensation, and should therefore be set aside.

The Court of Justice clarified these issues when answering preliminary questions from the Lisbon District Court on the applicability of the EU Damages Directive (the Directive), and the compatibility of the Portuguese rules on limitation with general European law principles. The Court of Justice found that the Directive was not applicable, and assessed the Portuguese rules in light of the principle of effectiveness.

In June 2013, the Portuguese Competition Authority imposed a fine on Sport TV for abusing its dominant position in the pay-TV market. In 2015, one of Sport TV's contractual partners, Cogeco, sued Sport TV, seeking compensation for the harm it had suffered as a result of Sport TV's abusive conduct. Sport TV argued that Cogeco's claim was time-barred, based on the fact that Cogeco had already made a complaint to the Authority in 2009.

Under Portuguese law, the claim of Cogeco would be time-barred, but under the rules prescribed by the Directive it would not. The Directive provides that limitation periods should be at least five years, commencing when the infringement has ceased and the claimant knows or can reasonably be expected to know of the infringement, the harm caused, and the identity of the infringer. Additionally, the period must be suspended during the investigation of a competition authority. Conversely, Portuguese civil law provides a three-year limitation period starting from the moment the claimant becomes aware of its right to compensation, even if he is unaware of the identity of the person liable and the full extent of the damage. Moreover, this limitation period is not interrupted or suspended during the proceedings of a competition authority. In light of these diverging rules on limitation, the Portuguese court sought guidance from the Court of Justice on the applicability of the Directive's rules, and on whether other rules or principles of European law were relevant to this dispute.

The Court of Justice found that the Directive was not applicable ratione temporis (meaning "in time") because Cogeco had filed the claim before transposition of the Directive into the Portuguese legal order. Therefore, the Court of Justice analysed the Portuguese laws on limitation against the European law principle of effectiveness.

In the context of competition law damage claims, this principle entails that national rules may not make it practically impossible or excessively difficult for victims to exercise the right to claim compensation. In its analysis, the Court of Justice found that the Portuguese rules on limitation indeed breached this principle: "a limitation period of three years, such as that at issue in the main proceedings, which, first, starts to run from the date on which the injured party was aware of its right to compensation, even if the infringer is not known and, secondly, may not be suspended or interrupted in the course of proceedings before the national competition authority, renders the exercise of the right to full compensation practically impossible or excessively difficult."

This ruling confirms that – in the absence of applicability of the Directive – it is for the national legal order to provide the rules for EU antitrust damages claims. These national rules must however comply with European law principles, and can – if necessary – be considered inapplicable under these principles.

This article was published in the Competition Law Newsletter of April 2019. Other articles in this newsletter:

• Tick-tock: no reset of the appeal clock for amending Commission decision
• Fine liability in antitrust cases is closely scrutinised by Dutch courts
• Don't take the ACM's digital inspection guidelines too literally
• Loyalty rebate scheme 'saved' by pharma company's market misconceptions
• European Court of Justice issues landmark ruling on parental liability