Jurisdiction to apply art. 101.1 TFEU to conduct prior to regulation 1/2003.

The CJEU rules that National Courts have jurisdiction to apply article 101(1) TFEU and article 53(1) EEA in actions for damages for infringements prior to the entry into force of regulation nº. 1/2003 and during the transitional regime of articles 104 and 105 TFEU. 

1. Preliminary remarks

The judgment of the Court of Justice of the European Union (“CJEU”) in case C-819/19 arises from a decision of the European Commission (“Commission”) of March 2017 (“2017 Decision”) confirming a prior decision of November 2010 on “Case C.39258 – Airfreight” (“2010 Decision”). In its later decision the Commission (i) found that 21 companies in the air transport sector had engaged in price coordination in the provision of airfreight services in different periods and for different routes between airports located in the EU, within and outside the EEA, and airports in Switzerland. Therefore, the Commission declared this conduct contrary to article 81 EC (now article 101(1) of the Treaty on the Functioning of the European Union, (“TFEU”)), article 53(1) of the Agreement on the European Economic Area (“EEA”), and article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport; (ii) confirmed the duration of the infringement from December 1999 to February 2006; and (iii) imposed fines on 19 of the 21 companies sanctioned by the 2010 Decision.

However, with respect to the second point and due to its lack of competence, the Commission limited its findings and fines: (i) from May 1, 2004, for EU-third country routes; (ii) from June 1, 2002, for routes between airports in the EU and airports in Switzerland; and (iii) from May 19, 2005, for routes between EEA countries that are not EU Member States and third countries. This lack of competence was based on the absence of a legal instrument which, at the time of the adoption of the Decision, conferred to the Commission the necessary competence to sanction periods prior to those indicated.

2. Content of the request for a preliminary ruling

Stichting Cartel Compensation and Equilib Netherlands BV filed a claim before the “Rechtbank Amsterdam” (Amsterdam Court of First Instance) against 14 carriers, seeking a declaratory judgment and damages for infringement of article 81 EC (now article 101(1) TFEU) and article 53(1) EEA covering the entire duration of the conduct rather than the limited period considered by the Commission.

In the context of these civil proceedings, the defendant carriers argued that national courts lacked jurisdiction to enforce article 81 EC (now article 101 TFEU) before the period considered by the Commission. Instead, they alleged that the competence remained solely with the national authorities and the Commission under the transitional regime provided for in articles 84 and 85 EC (now articles 104 and 105 TFEU). On the other hand, the claimants relied on the direct effect of article 81 EC (now article 101 TFEU) to assert the jurisdiction of the domestic court.

In view of these discrepancies, the Rechtbank Amsterdam stayed the proceedings and referred a question to the CJEU for a preliminary ruling on whether national courts have jurisdiction to apply article 81 EC (now article 101(1) TFEU) and article 53(1) EEA to anti-competitive practices that occurred during the transitional regime by virtue of the direct effect of article 81 EC (now article 101 TFEU) or, as the case may be, article 53 EEA.

3. Judgment of the CJEU

In its judgment of November 11, 2021 (Case C-819/19, ECLI:EU:C:2021:904), the CJEU ruled that national courts have jurisdiction to apply article 81 EC (now 101 TFEU) and article 53 EEA in a private law dispute concerning an action for damages brought after the entry into force of Regulation (EC) No. 1/2003 for prior infringements, even in the absence of a decision under articles84 and 85 EC (now articles 104 and 105 TFEU)—i.e., the transitional regime applicable at the time—provided that the conduct was capable of affecting trade between EU Member States and EEA countries.

According to the CJEU, the absence of a decision based on articles 84 and 85 EC (now articles 104 and 105 TFEU) regarding the infringement “does not prevent this court from applying article 81 EC (now article 101 TFEU) to the conduct in question in order to find that there has been an infringement of the latter provision and, if appropriate, to order compensation.”

Finally, as regards the interpretation of article 53 EEA, the CJEU recalls that this provision prohibits the same anti-competitive conduct described in article 81 EC (now article 101 TFEU) and therefore concludes that it “must be interpreted in the same way.” Thus, the CJEU applies the above considerations mutatis mutandis to the interpretation of article 53 EEA.