Our experts analyze the recent ruling by the European Court of Justice (ECJ) on Case C-25/21 on competition law, on the basis of the burden of proof in actions for damages brought under Article 101 TFEU (Treaty on the Function of the European Union), which prohibits anti-competitive agreements between companies.
The claimants are the owners of a service station built by their predecessor. During the period from 1987 to 2009, the claimants or their predecessor, on the one hand, and Repsol, on the other, concluded several exclusive contracts for the supply of fuel.
In 2001 (final decision 2010) and 2009 (final decision 2015) Repsol was penalised for having indirectly fixed the fuel retail prices charged by the service stations concerned, and in the context of a supervisory procedure, the National Competition Commission delivered three decisions in which it found that Repsol had continued to disregard the competition law rules until 2019.
In those circumstances, the claimants sought a declaration of nullity of the contracts concluded between them and the company Repsol, as well as compensation for the harm allegedly caused by those contracts.
The case concerned the interpretation of Article 2 of Council Regulation (EC) No 1/2003, which provides that the burden of proving an infringement of Article  (1) or of Article [102 TFEU] shall rest on the party or the authority alleging the infringement.
To ensure the effective enforcement of competition law and to facilitate victims of anti-competitive behavior the access to justice, the ECJ found that the burden of proof should shift to the defendant whenever a decision of a national competition authority, concerning an infringement of competition legislation, has become final after having been confirmed by national courts.
This means that the infringement found in the decision should be deemed to be established by the applicant until proof to the contrary is adduced by the defendant, provided that the temporal and territorial scope of the alleged damages coincides with that of the infringement found in that decision.
The court also concluded that Article 9.1 of Directive 2014/104, which establishes an irrefutable presumption as to the existence of an infringement of competition law, must be held to be substantive in nature according to the criteria established in the judgment of 22 June 2022, Volvo and DAF Trucks, (C‑267/20), meaning it cannot be applicable ratione temporis to actions for damages brought following decisions of national competition authorities which became final before the date of expiry of the time limit for transposition of the said directive.
The decision will have significant implications for competition law cases across the EU and is likely to strengthen the enforcement of competition law by making it easier for victims of anti-competitive behavior to seek damages.