The Directive 2014/104 / EU on certain rules governing actions for damages under national law for infringements of the provisions of the competition law of the Member States and of the European Union, allows victims of conduct contrary to competition law to obtain my full compensation for their damage by private legal action. In particular, it makes it possible to harmonize at European level the rules of the Member States which govern actions for damages.
The question arises: how does the application of this directive relate to European competition law rules?
The Court of Justice of the European Union answered this question with a judgment of March 14, 2019 . With this decision, the European judges clarified the concept of business and its application in the context of a private action for compensation for competitive damage.
In this case a cartel was implemented in the asphalt market in Finland. This agreement covered the division of markets, tariffs and the submission of offers for the packages. It applied in all member states of the European Union and could negatively impact trade between member states. On December 29, 2009, the Supreme Administrative Court of Finland condemned the companies which participated in the operation to financial penalties for the violation of article 101 of the Treaty on the Functioning of the European Union  . The sanction affected all companies that personally participated in the cartel, but also companies that took over the economic activity of other dissolved companies, under the principle of economic continuity.
Following this decision, the city of Vantaan brought legal action for compensation for its damage resulting from the agreement between the companies because this resulted in an additional cost in carrying out the asphalt work. The Finnish Court of Appeal, however, ruled that the city of Vantaan could not obtain compensation for its damage from the buyers of the dissolved companies. The Finnish judges justified their decision on the basis of the principles governing liability law of Finnish law: “the legal entity which caused the damage is solely responsible”, this means that any joint-stock company is a separate legal entity which has its own heritage and which assumes its own responsibility. She doesn’t have to take responsibility for another company
The victim then lodged an appeal against this decision. On the occasion of this appeal, the Finnish court referred three preliminary questions to the Court of Justice of the European Union which aimed to clarify whether the determination of the entities required to compensate for damage linked to practices contrary to the he article 101 of the TFEU is a matter for European law.
It is therefore necessary to define the criteria for the concept of “company”
The main problem which arose is as follows: “Should the determination of the entities required to compensate damage caused by conduct contrary to Article 101 TFEU be made on the basis of a direct application of this provision?” , or on the basis of the provisions of national law? Thus, the Finnish court is wondering whether it should base itself on Finnish law or on European law to determine which companies should compensate the city of Vantaan.
In the event that the judges conclude that it is necessary to rely on European law, the question arises as to what are the criteria which make it possible to define a company within the meaning of Article 101 of the TFEU.
The European judges recalled that article 101 TFEU produces direct effects in the internal order of the member states, therefore the determination of the entity required to repair the damage caused by an infringement of article 101 of the TFEU is directly governed by Union law and not national law. It is therefore necessary to define the criteriathe concept of “company” within the meaning of Article 101 of the TFEU. The Court underlined that the notion of “undertaking” in this article is intended to designate the perpetrator of an offense set out in Article 101 TFEU.
The European judges referred to the definition of a company put forward by a judgment of 11 December 2007: “ the concept of” company “, within the meaning of Article 101 TFEU, includes any entity carrying out an economic activity, regardless of the legal status of this entity and its mode of financing ”. This concept should therefore be understood as designating an economic unit which may be made up of one or more legal persons.
In principle, each company is personally liable for the damage resulting from an infringement committed by the company itself in violation of the competition rules of the European Union. Consequently, the “ entities required to make good the damage caused by a cartel or by a practice prohibited by Article 101 TFEU are the undertakings, within the meaning of that provision, which participated in this cartel or practice < / em>. “But can we consider that in the context of a restructuring situation a new entity is created and that, consequently, it is not it who committed the criminal act? The European judges considered that in the context of a situation of corporate restructuring, a legal or organizational change of an entity which has committed an offense does not necessarily lead to the suppression of the company and the creation of a news which would be irresponsible for behavior exercised in violation of the competition rules since “ from an economic point of view, there is identity between this one and the new entity “. Thus, the judges affirm a principle of economic continuity in the context of private actions for compensation. Thus, the liability of companies continuing the economic activity of dissolved companies that have participated in an anti-competitive practice may be incurred by the victims of said practice.
Directive 2014/104 grants various rights to victims of damage resulting from a violation of competition law. Article 3 of this directive establishes a right to full compensation: “ Member States shall ensure that any natural or legal person who has suffered damage caused by an infringement of competition law is able to claim and to obtain full compensation for this damage. ”. The question arises as to what can be compensated for the damage suffered. The right to full reparation refers to reparation for the actual damage suffered, loss of profits and payment of interest to victims, whether direct or indirect. On reading the cited provision, we see that despite a desire for European harmonization of legislation, the European institutions wished to leave a relatively large margin of maneuver to the States to guarantee the rights provided for by the directive. What guarantees are provided by the Member States to effectively apply the rights provided for by Directive 2014/104?
It is necessary to ensure the effectiveness of recourse action so that the company that paid does not see its survival threatened
The Law of December 5, 2016 transposing this directive into Luxembourg law recognizes the basic principle of the European directive: the right to full compensation. But in addition to this right, it provides other important clarifications. The European directive guarantees victims “ access to the relevant evidence necessary to prepare their actions for damages ”, it sets a framework around the disclosure of evidence. The main challenge: on the one hand, to strike a balance between facilitated access to evidence for victims of anti-competitive practices and, on the other hand, to protect the interests of companies, in particular the protection of confidential information. The directive therefore provides that national courts must exercise rigorous control over the usefulness of the disclosure of information and also a control of proportionality between the interests in question. But the juThe national government can order the production of evidence containing useful information whenever this is necessary. The Luxembourg legislator has placed limits on this power: Article 5 of the transposition law provides that certain evidence or information contained in the files of the national competition authority cannot be disclosed. This is the case of “ declarations made with a view to obtaining leniency and on transaction proposals, obtained by a natural or legal person only through access to the file of a competition authority </ em > ”.
Next, the bill provides for a second measure in favor of victims: joint and several liability of companies which have acted in violation of competition law. This implies that each of the companies will be forced to compensate the entire damage caused and that the victim can demand this compensation from each of them until their damage is fully repaired. The company that has paid more than its part can then take recourse action against the other companies. Nevertheless, it is necessary to ensure the effectiveness of the recourse action so that the company that paid does not see its survival threatened.
In order to allow companies to secure a defense, the practice of “ passing on defense ” has been put in place by which the offending company can oppose the direct victim to the repercussion of its costs on the buyers. This helps prevent victims from being compensated for harm they have not suffered.
Finally, we find in the transposition law most of the provisions provided for by directive 2014/104. However, it would have been possible for the Luxembourg legislator to go further and put in place a collective action for compensation, even if this was not required by the directive. The introduction of class actions could make these remedies more effective because the damaging consequences of a cartel are seldom limited to a single individual and can be of exceptional magnitude.
In the majority of EU member states collective action procedures have been established. In France, it was notably introduced in the consumer law of March 17, 2014, which enshrines group action in its first article. It provides that complaints from consumers who are victims of a breach committed by the same professional can be grouped together in a single collective action. For example, if companies put in place competitive practices such as a cartel and these are deemed to be established after a final decision by the competition authority, then consumers who have suffered prejudice from these practices may meet. to bring an action against the company that committed the tort. Belgian law introduced a similar action by the Law of 28 March 2014 inserting a title 2″ Action for collective reparation “.
Finally, Directive 2014/104 grants rights to victims of anti-competitive practices, but we see that it suffers from shortcomings and that European law has not gone as far as it should have to guarantee an effective remedy for them. victims: the obligation for member states to put in place provisions to regulate collective redress would have made legal proceedings more effective.
 “ 1. Are incompatible with the internal market and prohibited are all agreements between undertakings, all decisions of associations of undertakings and all concerted practices which are liable to affect trade between Member States and which have the object or effect of preventing, restrict or distort the play of competition within the internal market, and in particular those which consist of:
- a) directly or indirectly fix the purchase or sale prices or other trading conditions,
- b) limit or control production, markets, technical development or investments,
- (c) share markets or sources of supply,
- (d) apply unequal conditions to equivalent services with regard to trading partners, thereby placing them at a competitive disadvantage,
- e) make the conclusion of contracts subject to acceptance by the partners of servicesadditional which, by their nature or according to commercial usage, have no connection with the subject of these contracts . […] ”