A Portuguese court (Tribunal Judicial da Comarca de Lisboa) has referred the first preliminary ruling request on Directive 2014/104 (“the EU Damages Directive”) to the Court of Justice of the EU. The reference of the case is C-637/17.
The main question referred by the Portuguese court aims at clarifying the applicability of the EU Damages Directive to proceedings instituted before the expiry of the Directive’s transposition period concerning facts that occurred prior to its publication.
The preliminary ruling has been referred in the context of an action for damages filed by Cogeco Group against Sport TV on the basis of articles 9 and 10 of the EU Damages Directive. The plaintiff founded its claims on the basis of a decision of the Portuguese Competition Authority declaring that Sport TV had abused its dominant position in the paid TV market between 2006 and 2011. The Decision was confirmed by Lisbon’s Court of Appeal in March 2015.
According to Article 498(1) of the Portuguese Civil Code, the right to bring an action for damages expires within 3 years as from the day in which the person concerned knew of its right to bring such an action. However, under Article 10 of the EU Damages Directive the right to bring an action for damages resulting from competition infringements expires 5 years after the person concerned learned of the conduct, the harm caused and the identity of the author of the infringement.
In the same line, article 9 of the EU Damages Directive establishes a non-rebuttable presumption regarding the existence of a Competition Law infringement if there is a final decision of a Competition Authority or a final judgment declaring such infringement. By contrast, article 623 of the Portuguese Procedural Code does not foresee such a presumption.
The facts underlying Cogeco’s claim occurred before the date of publication of the EU Damages Directive (i.e., 5 December 2014), and Cogeco’s claim was filed before 27 December 2016, date at which the transposition deadline of the Directive expired.
Hence, the Court of Justice of the EU will need to rule on whether it is possible to exclude the application of national provisions that clash with the EU Damages Directive regarding actions for damages exercised before the expiry of the Directive’s transposition period related to facts that took place before its publication.
If the question was to be replied positively, the Court of Justice has been asked to clarify whether it is possible to interpret and apply the national provisions in question in a way that is in line with the EU Damages Directive. If that is the case, the Portuguese Court has inquired whether it is possible for the claimant to invoke article 22 of the EU Damages Directive in proceedings concerning an action for damages instituted before a national court. Such article (i) prohibits the retroactive application of substantive provisions adopted by Member States in order to transpose the Directive and (ii) establishes that procedural national provisions adopted by Member States in order to transpose the Directive shall not apply to actions for damages brought before 26 December 2014 (i.e., the date of publication of the Directive).