The European Court of Justice confirms claimant-friendly stance on limitation

In the recent judgment in the case Heureka (Case C-605/21), the European Court of Justice confirmed that if an infringement continued to produce effects after the expiry of the time limit for the transposition of the Competition Damages Directive on 27 December 2016, then the limitation provision in the directive applies for the entire claim. Since the limitation period in the case at hand had not even started to run on the date on which the time limit for transposing the directive expired, Article 10 of the directive was applicable in the case. It was therefore required that the limitation period must be suspended at the very least until one year after the date on which the decision finding the infringement becomes final.

The case concerns a reference for preliminary ruling made by the Prague Municipal Court in proceedings between the Czech undertaking Heureka Group a.s. and Google LLC concerning an action for damages following on the European Commission’s decision from 27 June 2017 in the Google Shopping case. By that decision the European Commission found that Google had abused its dominant position by decreasing traffic from its general search results page to competing comparison shopping services and increasing traffic to its own comparison shopping service. Google’s abuse in the Czech market started in February 2013 and was ongoing when the European Commission rendered its decision. The decision was appealed by Google and is now pending before the European Court of Justice.

Heureka’s action for damages was brought on 26 June 2020. Google argued the action was at least partially time barred under Czech law, which would have required Heureka to bring an action seeking damages within three years of each partial occurrence of harm. Moreover, Czech legislation did not permit the limitation period to be suspended or interrupted during the European Commission’s investigation into such an infringement.

In its judgment, the European Court of Justice confirms its recent case law from Volvo and DAF Trucks, C-267/20. Concluding that if an infringement continued to produce effects after the expiry of the time limit for the transposition of the Competition Damages Directive on 27 December 2016, then the limitation provision in the directive applies for the entire claim. It is therefore relevant to establish whether the limitation period for a claim has elapsed under national rules on limitation before the date of transposition of the directive.

In regards of national rules on limitation applicable up until the transposition of the directive, the judgment further confirms that they must ensure the full effectiveness of Article 102 TFEU, why the limitation period for damages for an infringement of EU competition law cannot begin to run before the infringement has ended and the injured party knows or should have known of the relevant circumstances to bring a claim for damages. Moreover, EU law requires the suspension of the limitation period for the duration of a European Commission investigation.

The European Court of Justice pointed out that the infringement was ongoing on the date of adoption of the European Commission’s decision (27 June 2017). Given that the infringement was ongoing, the limitation period had not even started to run on the date on which the time limit for transposing the Competition Damages Directive expired (27 December 2016). The European Court of Justice therefore determined that Article 10 of the directive was applicable in the case, why the questions in the reference for preliminary ruling must be answered on the basis, not only of Article 102 TFEU and the principle of effectiveness, but also of Article 10 of the Competition Damages Directive.

As pointed out by the European Court of Justice in paragraph 94 of the judgement, Article 10 of the Competition Damages Directive precludes limitation rules in so far as they do not provide for the limitation period to be suspended, at the very least, until one year after the date on which the decision finding that infringement has become final.

In practice, based on the judgment in Heureka, it can be concluded that the limitation period in damage claims against Google, following on the European Commission’s decision in Google Shopping, cannot start to run until the earliest one year after the European Court of Justice has rendered its forthcoming judgment in the appeal case.

Helena Selander, partner

Ida Ek Sp?ngberg, associate