RM vs DAF TRUCKS and VOLVO AB
The implementation of Directive 2014/104, designed to regulate tort actions for competition law infringements, gave rise to several interpretational challenges around Article 22, which establishes a prohibition on the retroactive application of the Directive’s substantive provisions. The key issue was to determine which provisions were substantive and which were not.
In the context of this interpretational problem, the Provincial Court of León referred a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling that would clarify certain questions that were not entirely made clear regarding the characteristics of Article 10.3. It established a 5-year limitation period for the exercise of a tort action for damages. Article 17. 1 aims to establish a more flexible standard of proof required from the injured party in order to quantify the damage and balance the information asymmetry existing between plaintiff and defendant, establishing that the burden of proof may not render it excessively difficult for the injured party to bring an action.
After analyzing the case, the CJEU held Article 10.3 to be a substantive rule and that, therefore, the new 5-year limitation period may not be applied retroactively. In the present case, the plaintiff brought the action for damages on April 1 2018, i.e., after December 26 2016, the date on which the deadline by which Spain, as a Member State, had to transpose the Directive had expired. However, as the CJEU understands it, the dies a quo for the present case began to elapse on April 6, 2017, the date on which the summary of Decision C (2016) 4673 was published in the EU’s Official Journal, by which the truck manufacturers’ cartel was sanctioned. According to the Court, it was on this day that the injured parties first had at their disposal the essential information that would have enabled them to pursue their claim for damages. Given that, as of April 1, 2018, the 1-year limitation period applicable under the previous rules had not expired (as from April 6, 2017), the CJEU then held that the 5-year limitation period was nevertheless applicable to the case.
As regards Article 17.1, the CJEU determined that it constitutes a procedural provision and that it is applicable rationae temporis to the case in question, since the action had been brought after December 26 2016, the date by which the Directive should have been implemented in Spain.
Following the CJEU’s answers, the Court of León dismissed the defendants’ ground for appeal, which were based on the inapplicability of the Directive and the Royal Decree of transposition (paragraph 14.4). Thus, the Court confirms that “the substantive nature of the statute of limitations does not allow the reactivation of actions already exhausted” (…) “but it does allow the applicability of the new rules upon ongoing actions to be assessed.” (paragraph 17.2)
Likewise, the Court confirmed the compensation imposed on the defendants in the first instance court, which corresponded to 15% of the overrun cost, recognizing that “the difficulties faced by the injured parties in the process of calculating the specific damage claimed are evident”, and that the fact that the defendant’s expert opinion “does not allow us to conclude that the percentage proposed accurately reflects the damage incurred does not lead to the dismissal of the claim because, despite its rejection, we recognize that there has been a serious attempt at proving the overcharge in a context of undoubted evidentiary difficulty” (paragraph 36. 1). The Court highlights the novelty of the new tool granted, by Article 17.1 of the Directive, to judges in order for them to judicially estimate the damage while reducing the evidentiary standards.
Finally, the Court of León dismissed both appeals filed by the defendants and upheld the decision issued by the Commercial Court of León.