The CJEU rules on the statute of limitations applicable to the "Euribor Cartel"

As we already mentioned in our previous article | Respuesta de los juzgados y tribunales en las demandas por el "Cartel del Euribor" where we explained the current situation in Spain in relation to the “Euribor Cartel” litigation arisen from the sanctioning decisions adopted by the European Commission in Case AT.39914, the Commercial Court number 11 of Barcelona filed, in the context of this litigation, a preliminary ruling procedure before the Court of Justice of the European Union (CJEU) regarding the limitation period of actions for damages for infringements to competition law, by Court Order of 17 February 2022.

The CJEU recently handed down Order of 6 March 2023 resolving the preliminary ruling, where it established that the 5-year period provided in article 5 of Directive 2014/104/UE (Directive) is the period applicable to this case, and that it commenced on 30 June 2017, after the sanctioning Summary Decision was published in the Official Journal of the European Union.

The CJEU’s answer is the same as the one provided in Judgment of 22 June 2022 (Case C-267/20, Volvo et alii, ECLI:EU:C:2022:494), rendered within the Trucks case (hence, the preliminary ruling was resolved via court order, pursuant to article 99 of the CJEU Rules of Procedure), although with an additional and outstanding remark. It is the CJEU’s understanding that the conclusions reached in that judgment regarding the dies a quo of the limitation period for the action are not altered by the fact that the claimants to the case are not legal persons, but consumers. The Court believes that “establishing a distinction between the harmed individuals, with the aim of determining the moment at which the limitation period commences, could raise uncertainties on the application of Articles 101 TFEU and 102 TFEU, which would go against the principle of legal certainty”.

Notwithstanding the above, it should be taken into account what the CJEU’s has clarified in its recent Judgment of 16 February 2023 (Case C-312/21, Tráficos Manuel Ferrer S.L., ECLI:ECLI:EU:C:2023:99) by stating that actions for damages for infringements to competition law cannot be mixed up with, or equated to actions for the control of unfair terms and conditions in bank contracts and the protection of consumers, since, while in consumer actions there is always a weaker party, in competition law actions the parties’ positions are re-balanced with the tools provided in the Directive.

In addition, the CJEU insists on the conclusion that the limitation period for the action “cannot commence before the end of the infringement and before the harmed party gained knowledge, or could reasonably have gained knowledge, both of the fact that they suffered harm as a result of the infringement, and the identity of the infringer”,  and, given the characteristics of the specific case, it considers that moment to be the publication of the sanctioning Summary Decision.

As regards the applicable limitation period, and the ratione temporis application of the Directive, the CJEU reiterates its own conclusions established in judgment of 22 June 2022, according to which article 10 of the Directive must be construed as to be a substantive provision to the effects of article 22.1 of the Directive itself; therefore, it cannot be applied retroactively. This said, it established that, in order to determine the termporal applicability of article 10 of the Directive, it is necessary to verify whether the situation that is relevant for the main proceeding was already terminated before the period for the transposition of the Directive had elapsed, or, on the contrary, it was still having effects after that period ended. 

The Court concludes that the 5-year limitation period provided in the Directive is applicable because, despite the fact that the action concerns an infringement that ended before the Directive came into force, the date when the limitation period for the action commenced (30 June 2017) is later than the expiration of the term to transpose the Directive (27 December 2016), and also later to the date when the provisons that transposed the Directive into Spanish law, via Royal Decree-Law 9/2017 (27 May 2017), came into force.