Opinion of the Advocate General — ECLI:EU:C:2023:695
Date: 2023-09-21
Language of the case: Czech
Subject matter: Competition;Approximation of laws;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary C-605/21 – 1 
Case C-605/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
30 September 2021 
Referring court:  
Městský soud v Praze (Czech Republic) 
Date of the decision to refer:  
29 September 2021 
Applicant:  
Heureka Group a.s. 
Defendant:  
Google LLC 
  
Background to the main proceedings  
The application lodged by Heureka Group a.s. (‘the applicant’) with the Městský 
soud v Praze (Prague City Court, Czech Republic) (‘the referring court’), in which 
the corporation seeks from the corporation Google LLC (‘the defendant’) 
compensation for damage in the form of loss of profits, reportedly caused by the 
abuse of a dominant position by the defendant, in that it placed and displayed, in 
the best possible position among the results of general searches, its own price 
comparison engine, to the detriment of the applicant’s price comparison engine 
(‘the contested conduct’).  
Factual and legal context of the request for a preliminary ruling 
The national court, pursuant to Article 267 of the Treaty on the Functioning of the 
European Union (‘TFEU’), hereby requests from the Court of Justice an 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/21 
 
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interpretation of Directive 2014/104, 1 of Article 102 TFEU, and of the principle 
of effectiveness. 
The questions referred  
1) Must Article 21(1) of Directive 2014/104 and general principles of EU law 
be interpreted such that Directive 2014/104, in particular Article 10 thereof, will 
apply, directly or indirectly, to the present dispute seeking compensation in 
respect of all harm caused by a breach of Article 102 TFEU, which commenced 
before the date on which Directive 2014/104 entered into force and ended after the 
expiry of the transposition period for its implementation, in a situation when the 
action seeking compensation in respect of harm was also lodged after the expiry 
of the transposition period, or such that Article 10 of Directive 2014/104 will 
apply only to the part of the conduct (and the ensuing part of harm) occurring after 
the date on which Directive 2014/104 entered into force or, as the case may be, 
after the expiry of the deadline for its transposition? 
2) Do the meaning and purpose of Directive 2014/104 and/or Article 102 
TFEU and the principle of effectiveness require Article 22(2) of Directive 
2014/104 to be interpreted such that the  ‘national measures adopted pursuant to 
Article 21, other than those referred to in [Article 22,] paragraph 1’ are those 
provisions of national legislation through which Article 10 of Directive 2014/104 
was implemented, in other words, do Article 10 of Directive 2014/104 and the 
rules on limitation fall within the first or the second paragraph of Article 22 of 
Directive 2014/104? 
3) Is national legislation and its interpretation in line with Article 10(2) of 
Directive 2014/104 and/or with Article 102 TFEU and with the principle of 
effectiveness if it links ‘knowledge of the fact that harm was caused’ – relevant to 
the commencement of the subjective limitation period – to the awareness of the 
injured party ‘of individual partial [occurrences of] harm’, which occur over time 
in the course of continuous or continuing anticompetitive conduct (as case-law is 
based on the assumption that the claim in question for compensation in respect of 
harm is, in its entirety, divisible) and in relation to which separate subjective 
limitation periods start to run regardless of the knowledge of the injured party of 
the full extent of the harm caused by the entire infringement of Article 102 TFEU, 
that is, national legislation and its interpretation that allow the limitation period 
for a claim for compensation in respect of harm caused by anti-competitive 
conduct to begin to run before the point at which ceased that conduct consisting of 
more favourable placement and display of one’s own price comparison engine 
[OR. 2] in breach of Article 102 TFEU? 
 
1 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on 
certain rules governing actions for damages under national law for infringements of the 
competition law provisions of the Member States and of the European Union (OJ 2014 L 349, 
p. 1, ‘the Directive’). 
HEUREKA GROUP 
 
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4) Do Article 10(2), (3), and (4) of Directive 2014/104 and/or Article 102 
TFEU and the principle of effectiveness preclude national legislation that provides 
that a subjective limitation period, in the case of actions seeking compensation in 
respect of harm, is three years and starts to run on the day when the injured party 
learned or could have learned of partial harm and of the person obliged to 
compensate for it, but does not take into account (i) the point at which the 
infringement ceased; (ii) the knowledge of the injured party that the conduct 
constitutes an infringement of the competition rules and that, at the same time (iii) 
does not suspend or interrupt the three-year limitation period during the 
proceedings before the Commission concerning the ongoing infringement of 
Article 102 TFEU; and (iv) does not contain the rule that the suspension of the 
limitation period will end no earlier than one year after the decision concerning 
the infringement has become final?  
Provisions of EU law invoked  
Article 102 TFEU and Articles 10, 21, and 22 of the Directive.  
Applicable provisions of national law and their temporal scope 
In the period of the contested conduct (from February 2013 to 27 June 2017), 
three legal regulations applied. Of those, the referring court deems relevant the 
Občanský zákoník (Civil Code) 2 which is applicable to the majority of the period 
(from 1 January 2014 to 27 June 2017). Pursuant to Paragraphs 620 and 629 of the 
Civil Code, the subjective limitation period runs for 3 years, and its 
commencement is linked to ‘knowledge of harm and of the person liable to pay 
damages’.  
Until 31 December 2013, zákon č. 513/1991 Sb., obchodní zákoník (Law 
513/1991, the Commercial Code) was in force, which also gave the injured party 
the right to compensation in respect of harm due to anticompetitive conduct, with 
the difference that it provided for a four-year limitation period, which, however, 
the referring court does not deem relevant.  
Since 1 September 2017, zákon č. 262/2017 Sb., o náhradě škody v oblasti 
hospodářské soutěže (Law 262/2017, on compensation for harm in the sphere of 
competition) (‘the LCDC’), implementing the Directive, has been in force. 3 
 
2 Zákon č. 89/2012 Sb., občanský zákoník (Law 89/2012, the Civil Code; in effect from 1 January 
2014) (‘the Civil Code’). 
3 The requirements of Article 10 of the Directive have been reflected in the provisions of 
Paragraph 9 LCDC.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/21 
 
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Brief description of the facts of the case  
1 The applicant challenged the contested conduct on 26 June 2020 by means of an 
action for damages in the form of loss of profits of CZK 394,857,000 plus 
associated amounts and interest, lodged with the referring court, as the court of 
first instance.  
2 The action was lodged in pursuance of the  Commission decision of 27 June 2017, 
AT.39740, in Google Search (Shopping) (‘the Commission Decision’), 4 which 
stated that, by its contested conduct, the defendant had infringed Article 102 
TFEU, inter alia, in the Czech Republic between February 2013 and 27 June 2017.  
3 The issuance of the Commission Decision was preceded by the following facts: 
– On 30 November 2010, the Commission opened an investigation 
regarding the defendant’s potential infringement of Article 102 TFEU; 
– On 27 May 2014, a press release was issued by the Sdružení pro 
internetový rozvoj v České republice (Association for Internet 
Development in the Czech Republic, SPIR), of which the applicant is a 
member, containing the association’s disagreement with the 
obligations proposed by the defendant in the proceedings before the 
Commission; 
– On 15 April 2015, the Commission issued a statement of objections in 
the matter; and 
– On 14 July 2016, the Commission initiated proceedings for 
infringement of Article 102 TFEU (with, in addition to the defendant, 
the defendant’s parent company, Alphabet Inc). 
4 The defendant argues that the applicant’s claims are time-barred as, given the 
facts stated in the previous paragraph, the applicant could have learned that it was 
incurring harm and who was causing it 5 far earlier than the point at which the 
Commission’s decision was issued, stating that the subjective limitation periods in 
respect of (partial) harm commenced gradually, starting in February 2013, i.e., 
from the beginning of the alleged harm, and no later than from 27 May 2014, i.e., 
from the publication of the SPIR press release.  
5 Hence, the applicant could have asserted its claim earlier and expanded it 
gradually by adding (partial) harm as it accrued in time, if it believed that the 
 
4 On the basis of national and EU legal regulation, the referring court is bound by that decision in 
terms of the determination of the person responsible for anti-competitive behaviour and of 
whether the behaviour has indeed occurred.  
5 It is not in any doubt that the Google internet search engine is operated by Google LLC. 
HEUREKA GROUP 
 
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defendant’s anti-competitive conduct continues and the harm accompanying it is 
increasing.  
6 The defendant therefore considers the claim to be time-barred, at least for the 
period from February 2013 to 25 June 2016 
Brief statement of grounds for the question referred 
7 Question 1 – Whether and to what extent the Directive should apply to this case. 
The answer to the question is not clear, as the contested conduct started before the 
Directive entered into force (i.e., before 25 December 2014), but only ceased after 
the expiry of the deadline for implementation of the Directive, i.e., after 
27 December 2016, and the Directive was only implemented on 1 September 
2017, when the LCDC took effect. 
8 Therefore, it is not clear whether Article 10 of the Directive will apply to (i) all 
damage in the period between February 2013 and 27 June 2017 or only to (ii) a 
part of the damage in the period between 26 December 2014 and 27 June 2017…, 
or after the expiry date of the deadline for implementation of the Directive, from 
28 December 2016 to 27 June 2017. In this regard, it may also be decisive 
whether the Article constitutes a substantive or a procedural provision (see 
paragraphs 10 and 11 below).  
9 If the case (even partially) fell outside of the temporal scope of the Directive, the 
national legislation 6 would have to be assessed only from the perspective of 
Article 102 TFEU and the principle of effectiveness. 
10 Question 2 – whether Article 10 of the Directive is the provision referred to in 
paragraph 1 or paragraph 2 of Article 22 of the Directive. Paragraph 1 of that 
Article applies to substantive provisions and provides for the prohibition of their 
retroactive application, whereas paragraph 2 applies to ‘other’, i.e., procedural, 
provisions of the Directive.  
11 National legislation enacted to implement Article 10 of the Directive would then, 
according to its nature, fall within one of those regimes. If Article 10 fell under 
the regime of Article 22(2) of the Directive, the provisions of the LCDC, 7 which 
lays down a limitation period of five years and which applies to limitation periods 
that had commenced pursuant to hitherto applicable legal regulations and that had 
not ended by the said date, would apply with effect from 1 September 2017, the 
action for damages in the present case being filed after 25 December 2014. 
 
6 The substantive provisions of the LCDC which implemented the Directive do not apply to the 
case at hand due to the non-retroactivity principle.  
7 Paragraph 36 LCDC lays down the requirement provided for in Article 22(2) of the Directive 
and stipulates that the law will apply to the relevant proceedings for damages which are initiated 
after 25 December 2014.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/21 
 
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Conversely, if the provisions concerning limitation in Article 10 of the Directive 
were seen as substantive rules, that legislation would not apply.  
12 Traditionally, Czech doctrine and case-law have viewed rules on limitation as 
‘substantive’. A successful time-bar objection means that the injured party cannot 
successfully assert its right to damages in court even though that right continues to 
exist as a ‘natural obligation’. If a time-bar objection is not raised in court, the 
court will not take the limitation into consideration of its own motion and grants 
the time-barred right to the applicant. The referring court thus understands that the 
institute of limitation also has procedural characteristics. Furthermore, the 
Directive refers to the limitation of the ‘right to bring an action’ for damages, 
which might also indicate that that institute is of a more procedural nature. 
13 For the sake of completeness, the referring court notes that a similar issue is 
already the subject of a preliminary ruling before the Court of Justice in Case 
C-267/20 (Volvo and DAF Trucks). 
14 Question 3 – Whether, in terms of the start of the limitation period, the national 
concept of ‘knowledge of harm / of the fact that harm was caused’ corresponds to 
the meaning of the corresponding concepts in EU law.  
15 The Nejvyšší soud ČR (the Supreme Court, Czech Republic) 8 considers 
knowledge of even partial harm caused by a continuous or continuing 
infringement to be of relevance to the commencement of the subjective limitation 
period. It is not necessary for the injured party to know of the entire duration of 
such an infringement and about the full scope of the harm caused by such an 
infringement. The decision-making practice of courts is based on the assumption 
that harm in those cases is divisible and that every ‘new occurrence of harm’ by 
which the original harm has grown due to the continuation of the same harmful 
event may be claimed in court separately by a new action or by an extension of an 
existing claim for damages. A separate subjective limitation period of three years 
starts to run for each such partial harm.  
16 According to that interpretation, in the case at hand, every time the defendant 
advantageously placed and displayed its own sales price comparison engine on its 
general search website, the applicant may have incurred a certain loss of profit 
(partial harm) in connection with which one of many subjective limitation periods 
for assertion in court of the right to compensation in respect of that partial harm 
started to run. Thus, the applicant would learn again and again of a ‘new scope of 
harm’. Furthermore, that would result in the fact that partial occurrences of harm 
which date back to the beginning of the infringement could become time-barred 
before such an infringement has ceased. 
 
8 Judgment of the Nejvyšší soud (Supreme Court, Czech Republic) of 23 September 2015, file 
No. 25 Cdo 2193/2014, CZ:NS:2015:25.CDO.2193.2014.1. 
HEUREKA GROUP 
 
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17 In its judgment in C-637/17, 9 the Court of Justice emphasised the injured party’s 
knowledge of the ‘full extent of the damage’ and the possibility for the injured 
party to claim ‘full compensation for the damage’ caused by the anti-competitive 
conduct. It is not, however, entirely evident from that judgment whether 
knowledge of the ‘extent of the damage’ emphasised by the Court of Justice 
corresponds to knowledge of ‘the full extent of the damage’ resulting from the 
entire enduring abuse of a dominant position, or whether knowledge of ‘partial 
damage’ caused at a certain point in time within the framework of such an 
ongoing offence will suffice.  
18 The answer to that question probably depends on whether EU law requires not 
only qualitative knowledge (i.e., knowledge of a certain type and nature of 
damage), but also quantitative knowledge (i.e., knowledge of the entire extent of 
damage accumulating over time). If so, the limitation period could not start before 
the injured party learns of the full extent of the damage in its entirety.  
19 In the view of the referring court, the interpretation according to which the right to 
compensation for damage may be ‘fragmented’ into dozens of, if not hundreds or 
more, partial claims, does not correspond to the nature of the abuse of a dominant 
position in the case at hand. A partial assault consisting of the contested conduct 
cannot in and of itself constitute an infringement of Article 102 TFEU, which is 
solely constituted by the conduct as a whole, whose extent, duration, intensity, and 
method of execution resulted (could have resulted) in a ‘substantial’ disruption of 
competition, or an anti-competitive effect that is one of the prerequisites for the 
set of facts to qualify as abuse of a dominant position. 10 According to the 
referring court, any (for example, entirely marginal) effects are not sufficient for 
this purpose.  
20 Hence, the referring court believes that, due to the nature of the matter, the injured 
party could not learn of the full extent and type of damage in this case in 
connection with individual ‘partial attacks’ and the subjective limitation period 
(and in this case also the objective limitation period which cannot commence 
before the subjective period) for the exercise of the right to damages could not 
start to run before the cessation of the infringement, which occurred at the time of 
issuance of the Commission Decision.  
21 In light of those considerations, the referring court has doubts as to the 
compatibility of the interpretation adopted by national courts with Article 10(2) of 
the Directive, Article 102 TFEU, and the principle of effectiveness. 
 
9 Judgment of the Court of Justice of 28 March 2019 in C-637/17, Cogeco Communications, 
EU:C:2019:263, paragraphs 53 and 54. 
10 See, e.g., judgment of 13 February 1979 in 85/76 Hoffmann-La Roche v. Commission, 
EU:C:1979:36, paragraph 123, judgment in C-23/14 Post Danmark A/S v Konkurrencerådet, 
EU:C:2015:651, paragraphs, 40, 46, 47, 72, and 73 or judgment of the Court of Justice (Grand 
Chamber) of 6 September 2017 in C-413/14 P Intel, EU:C:2017:632, paragraphs 139-143.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/21 
 
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22 Question 4 – Whether the Directive, and, if it does not apply then, Article 102 
TFEU and the principle of effectiveness, preclude other aspects of the legislation 
on limitation contained in the Civil Code. 
23 The referring court first points to the above-mentioned judgment of the Court of 
Justice C-637/17 and to the judgment of the Court of Justice of 13 July 2006 in 
C-295/04 to 298/04 Manfredi, EU:C:2006:461, which were, however, rendered in 
a situation when the Directive was not applicable and the relevant facts of the 
cases, national legislation, and related case-law differed from those of the present 
case. 
24 In the case at hand, the Civil Code links the commencement of the three-year 
subjective limitation period to the fact that the injured party knew or could have 
known who caused the harm and of the harm (awareness of the precise amount of 
harm is not required, nor is 100% knowledge of the identity of the offender). 11 It 
is also possible to infer from the abovementioned national case-law a requirement 
as to the injured party’s knowledge of the conduct or of an individual partial 
assault in the context of a continuous infringement of Article 102 TFEU which 
resulted in a part of the harm.  
25 Unlike Article 10 of the Directive and Paragraph 9 LCDC implementing that 
article, however, the Civil Code does not contain the following features: 
– the requirement that the injured party must know that the conduct 
constitutes anti-competitive conduct; 12 
– linking the start of the subjective limitation period to the cessation of 
the anti-competitive conduct; 13  
– the interruption or suspension of the limitation period for the duration 
of an investigation into anti-competitive conduct by the competent 
body;  
– the end of the suspension of the limitation period no earlier than one 
year after the decision on the infringement becomes final. 
 
11 See also judgment of the Nejvyšší soud (Supreme Court) of 28 May 2020, file No. 25 Cdo 
1510/2019, CZ:NS:2020:25.CDO.1510.2019.1 
12 Here, the referring court notes that anti-competitive bodies often conclude that a practice in 
question is unlawful only after a thorough analysis of all relevant facts. 
13 According to the referring court, however, it is not clear whether the cessation of infringement 
as defined in Article 10(2) of the Directive means the time of the last partial assault of 
‘continuous/ continuing and repeated infringments’ (see judgment of the Court of Justice of 
24 March 2011 in T-385/06 Aalberts Industries and Others v Commission, EU:T:2011:114, 
paragraph 10; of 16 September 2013 in T-378/10 Masco and Others v Commission, 
EU:T:2013:469, paragraphs 119 and 120 (concerning infringement of Article 101 TFEU). The 
final text of the Directive did not reflect the explicit requirement of the cessation of ‘continuous 
or repeated infringement’ which was contained in an earlier draft of the Directive.  
HEUREKA GROUP 
 
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26 Thus, the course of the subjective limitation period in the case at hand was in no 
way influenced by the fact that, from 30 November 2010 to 27 June 2017, the 
defendant was subject to a Commission investigation into a potential (still 
ongoing) infringement of Article 102 TFEU, which led to the Commission 
Decision. 
27 The absence of the above-mentioned requirements of the Directive in national law 
cannot, in the view of the referring court, be overcome by interpretation in 
conformity with EU law. Hence, if the referring court interpreted the regulation 
contained in the Civil Code in accordance with applicable national case-law, the 
right to damages in the case at hand for the period from February 2013 to 25 June 
2017 (i.e., with the exception of two days of infringement) would most likely be 
time-barred. 
28 If the court were to find the objection that the action is time-barred to be well-
founded, it would dismiss the action in almost its entire scope. Otherwise, the 
court would undertake a time-consuming and costly collection of evidence 
pertaining to the occurrence and the amount of the alleged damage.