# C_2006224EN.01000301.xml

| 16.9.2006 | EN | Official Journal of the European Union | C 224/3 |
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16.9.2006

EN

Official Journal of the European Union

C 224/3

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Judgment of the Court (Third Chamber) of 13 July 2006 (references for a preliminary ruling from the Giudice di Pace di Bitonto — Italy) — Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04), Antonio Cannito v Fondiaria Sai SpA (C-296/04), Nicolò Tricarico v Assitalia SpA (C-297/04) and Pasqualina Murgolo v Assitalia SpA (C-298/04)

(Joined Cases C-295/04 to C-298/04) (1)

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(Article 81 EC - Competition - Agreements, decisions and concerted practices - Accidents caused by motor vehicles, vessels and mopeds - Compulsory civil liability insurance - Increase in premiums - Effect on trade between Member States - Right of third parties to claim compensation for harm suffered - National courts and tribunals having jurisdiction - Limitation period - Punitive damages)

(2006/C 224/05)

Language of the case: Italian

Referring court

Giudice di Pace di Bitonto

Parties to the main proceedings

Applicants: Vincenzo Manfredi (C-295/04), Antonio Cannito (C-296/04), Nicolò Tricarico (C-297/04), Pasqualina Murgolo (C-298/04)

Applicants:

Defendants: Lloyd Adriatico Assicurazioni SpA, Fondiaria Sai SpA, Assitalia SpA

Defendants:

Re:

Interpretation of Article 81 EC — Concerted practice between Italian and foreign insurance companies established in Italy covering car and motorcycle insurance contracts — Exchange of information which makes it possible to increase civil liability insurance premiums not justified by market conditions

Operative part of the judgment

| 1. | An agreement or concerted practice, such as that at issue in the main proceedings, between insurance companies, consisting of a mutual exchange of information that makes possible an increase in premiums for compulsory civil liability insurance relating to accidents caused by motor vehicles, vessels and mopeds, not justified by market conditions, which infringes national rules on the protection of competition, may also constitute an infringement of Article 81 EC if, in the light of the characteristics of the national market at issue, there is a sufficient degree of probability that the agreement or concerted practice at issue may have an influence, direct or indirect, actual or potential, on the sale of those insurance policies in the relevant Member State by operators established in other Member States and that that influence is not insignificant. |
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1.

An agreement or concerted practice, such as that at issue in the main proceedings, between insurance companies, consisting of a mutual exchange of information that makes possible an increase in premiums for compulsory civil liability insurance relating to accidents caused by motor vehicles, vessels and mopeds, not justified by market conditions, which infringes national rules on the protection of competition, may also constitute an infringement of Article 81 EC if, in the light of the characteristics of the national market at issue, there is a sufficient degree of probability that the agreement or concerted practice at issue may have an influence, direct or indirect, actual or potential, on the sale of those insurance policies in the relevant Member State by operators established in other Member States and that that influence is not insignificant.

| 2. | Article 81 EC must be interpreted as meaning that any individual can rely on the invalidity of an agreement or practice prohibited under that article and, where there is a causal relationship between the latter and the harm suffered, claim compensation for that harm.
  In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to prescribe the detailed rules governing the exercise of that right, including those on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed. |
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2.

Article 81 EC must be interpreted as meaning that any individual can rely on the invalidity of an agreement or practice prohibited under that article and, where there is a causal relationship between the latter and the harm suffered, claim compensation for that harm.

In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to prescribe the detailed rules governing the exercise of that right, including those on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed.

| 3. | In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction to hear actions for damages based on an infringement of the Community competition rules and to prescribe the detailed procedural rules governing those actions, provided that the provisions concerned are not less favourable than those governing actions for damages based on an infringement of national competition rules and that those national provisions do not render practically impossible or excessively difficult the exercise of the right to seek compensation for the harm caused by an agreement or practice prohibited under Article 81 EC. |
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3.

In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction to hear actions for damages based on an infringement of the Community competition rules and to prescribe the detailed procedural rules governing those actions, provided that the provisions concerned are not less favourable than those governing actions for damages based on an infringement of national competition rules and that those national provisions do not render practically impossible or excessively difficult the exercise of the right to seek compensation for the harm caused by an agreement or practice prohibited under Article 81 EC.

| 4. | In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to prescribe the limitation period for seeking compensation for harm caused by an agreement or practice prohibited under Article 81 EC, provided that the principles of equivalence and effectiveness are observed.
  In that regard, it is for the national court to determine whether a national rule which provides that the limitation period for seeking compensation for harm caused by an agreement or practice prohibited under Article 81 EC begins to run from the day on which that prohibited agreement or practice was adopted, particularly where it also imposes a short limitation period that cannot be suspended, renders it practically impossible or excessively difficult to exercise the right to seek compensation for the harm suffered. |
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4.

In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to prescribe the limitation period for seeking compensation for harm caused by an agreement or practice prohibited under Article 81 EC, provided that the principles of equivalence and effectiveness are observed.

In that regard, it is for the national court to determine whether a national rule which provides that the limitation period for seeking compensation for harm caused by an agreement or practice prohibited under Article 81 EC begins to run from the day on which that prohibited agreement or practice was adopted, particularly where it also imposes a short limitation period that cannot be suspended, renders it practically impossible or excessively difficult to exercise the right to seek compensation for the harm suffered.

| 5. | In the absence of Community rules governing that field, it is for the domestic legal system of each Member State to set the criteria for determining the extent of the damages for harm caused by an agreement or practice prohibited under Article 81 EC, provided that the principles of equivalence and effectiveness are observed.
  Therefore, first, in accordance with the principle of equivalence, if it is possible to award particular damages, such as exemplary or punitive damages, in domestic actions similar to actions founded on the Community competition rules, it must also be possible to award such damages in actions founded on Community rules. However, Community law does not prevent national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them.
  Secondly, it follows from the principle of effectiveness and the right of individuals to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition that injured persons must be able to seek compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest. |
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5.

In the absence of Community rules governing that field, it is for the domestic legal system of each Member State to set the criteria for determining the extent of the damages for harm caused by an agreement or practice prohibited under Article 81 EC, provided that the principles of equivalence and effectiveness are observed.

Therefore, first, in accordance with the principle of equivalence, if it is possible to award particular damages, such as exemplary or punitive damages, in domestic actions similar to actions founded on the Community competition rules, it must also be possible to award such damages in actions founded on Community rules. However, Community law does not prevent national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them.

Secondly, it follows from the principle of effectiveness and the right of individuals to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition that injured persons must be able to seek compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest.

damnum emergens

lucrum cessans

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(1)  OJ C 251, 9.10.2004.

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