By Guilherme Oliveira e Costa
With two major decisions, March 2019 was an interesting month with regard to the Court of Justice’s (also ‘ECJ’) case-law on private enforcement of competition law: Skanska (C-724/17) and Cogeco (C-637/17). This post will comment on the judgment in Cogeco, whereas a previous post analysed the Skanska ruling.
Cogeco is, in fact, an unsurprising judgment, particularly regarding its conclusions. But the decision itself contains a lot of interesting points, and was preceded by a noteworthy Opinion of AG Kokott. Additionally, its importance must not be underestimated since it is the first preliminary ruling on Directive 2014/104/EU (‘Damages Directive’) and, as pointed out by AG Kokott, there are still several questions connected with this Directive which need clarification. Moreover, this ruling also shows a very clear example on how unsuitably some national legal systems (the Portuguese one in the case at hand) treated private enforcement before the harmonisation implemented by the Damages Directive. Continue reading
By Guilherme Oliveira e Costa
With two major decisions, March 2019 was an interesting month with regard to the ECJ’s case-law on the private enforcement of competition law: Skanska (C-724/17) and Cogeco (C-637/17). This post will comment on the judgment in Skanska, whereas a later post will analyse Cogeco.
Skanska is a challenging judgement that confirms that the competition enforcement system must be viewed as a coherent system where both public and private enforcement play a crucial and complementary role, which is demonstrated by the application of the principle of economic continuity to private enforcement. Moreover, it addresses one of the several issues that has not yet been harmonised regarding private enforcement: the responsibility for damages in private enforcement legal procedures. As such, Skanska may be a leading case in a private enforcement’s possible second stage of development in the aftermath of Directive 2014/104/EU. Continue reading
On November 6th, the Grand Chamber of the CJEU issued a ruling in Case C-199/11 (Europese Gemeenschap v Otis NV and Others). The case concerns the principle of effective judicial protection (laid down in Article 47 of EUCFR) and the private enforcement of competition law. The Brussels Commercial Court referred the issue for a preliminary ruling in the course of a dispute between Otis and the other businesses and the EU, represented by the Commission.
The main controversy in the case was whether the principle of effective judicial protection was adequately safeguarded. The Commission, in this case, played a double role: first as the public enforcer of the EU competition law, and second as the victim of the anticompetitive practices. This meant, in a nutshell, that the Commission was asking for damages in a private suit on the basis of its own previous findings of anticompetitive behavior.