Opinion of the Advocate General — ECLI:EU:C:2019:32
Date: 2019-01-17
Language of the case: Portuguese
Subject matter: Competition;Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Portugal

summary, it must therefore be held in relation to the fourth and fifth questions referred: If a civil action for damages relates to facts which fall outside the temporal scope of Directive 2014/104, there is no obligation to interpret the national law in a manner consistent with that directive. This does not affect the obligation to interpret the national law in a manner consistent with Article 102 TFEU, to the extent that that article is applicable, and with the principle of effectiveness, provided that thereby the general principles of EU law are taken into consideration and EU law is not taken as a basis for an interpretation of the national law that is contra legem. VII. Conclusion 107. In light of the foregoing considerations, I propose that the Court answer the request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa (District Court, Lisbon, Portugal) as follows: (1) Article 102 TFEU produces direct effects in relations between individuals. By contrast, Articles 9 and 10 of 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 do not apply directly to a dispute between individuals in which the civil action was brought prior to the expiry of the period for transposition of that directive and concerns facts which occurred before it entered into force. (2) Article 102 TFEU, in conjunction with the principle of effectiveness under EU law, precludes a provision such as Article 498(1) of the Código Civil (Portuguese Civil Code), which, in respect of non-contractual claims for damages due to abuse of a dominant market position, establishes a limitation period of three years which begins to run even when the injured party is not yet aware of the identity of the person liable and of the full extent of the damage, and which is neither suspended nor interrupted during proceedings of the national competition authority to investigate and take action in respect of that infringement. (3) Article 102 TFEU, in conjunction with the principle of effectiveness, precludes the interpretation of a provision such as Article 623 of the Portuguese Civil Code, under which the final finding by the national competition authority of an abuse of a dominant market position produces no effects whatsoever in the civil action for damages. By contrast, this provision is compatible with Article 102 TFEU and the principle of effectiveness if it is understood to the effect that in the subsequent civil action for damages the rebuttable presumption of abuse of a dominant market position results from such a final finding by the national competition authority. (4) If a civil action for damages relates to facts which fall outside the temporal scope of Directive 2014/104, there is no obligation to interpret the national law in a manner consistent with that directive. This does not affect the obligation to interpret the national law in a manner consistent with Article 102 TFEU, to the extent that that article is applicable, and with the principle of effectiveness, provided that thereby the general principles of EU law are taken into consideration and EU law is not taken as a basis for an interpretation of national law that is contra legem. 1 Original language: German. 2 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1); ‘Regulation No 1/2003’. 3 See, essentially, on this subject judgments of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317). See also the pending case Otis Gesellschaft and Others (C‑435/18). 4 Directive 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’. 5 The edition of the Official Journal in which Directive 2014/104 was published is dated 5 December 2014. 6 Law No 23/2018 of 5 June 2018 (Diário da República No 107/2018, p. 2368). 7 District Court, Lisbon (Portugal). 8 It is clear from the files that at that time Cogeco — directly or indirectly — exercised sole control of Cabovisão. 9 The competition authority. 10 The complaint also concerned other undertakings in addition to Sport TV. 11 Article 6 of Portuguese Law No 18/2003. 12 File reference PRC‑02/2010. 13 Competition, Regulation and Supervision Court. 14 The Tribunal da Concorrência, Regulação e Supervisão did not consider that it had been proven that the business practices of Sport TV in question were capable of affecting trade between Member States within the meaning of Article 102 TFEU. 15 Court of Appeal, Lisbon. 16 Judgment of 4 December 1974, Van Duyn (41/74, EU:C:1974:133, paragraph 12). 17 Judgment of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709). 18 Judgments of 7 September 1999, Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); of 23 January 2018, F. Hoffmann-La Roche and Others (C‑179/16, EU:C:2018:25, paragraph 45); of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others (C‑426/16, EU:C:2018:335, paragraph 31); and of 25 July 2018, Confédération paysanne and Others (C‑528/16, EU:C:2018:583, paragraph 73). 19 It is clear from the settled case-law cited in point 18 that the Court may refuse to give a ruling on a request from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it. 20 See in this regard my statements in relation to the first and sixth questions referred (below, points 65 to 71 of this Opinion). 21 Judgment of 3 May 2011, Tele 2 Polska (C‑375/09, EU:C:2011:270, in particular paragraphs 21 to 30). 22 Judgments of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 29), and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 37); to the same effect, judgments of 5 October 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 111), and of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 89). 23 The need to provide the national courts with useful guidance on the interpretation and application of EU law and, where necessary, to reformulate the questions referred is recognised in settled case-law; see, inter alia, judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 34). 24 Judgment of 3 May 2011, Tele 2 Polska (C‑375/09, EU:C:2011:270, in particular paragraphs 21 to 30). 25 See in this regard Opinion of Advocate-General Mazák in Tele 2 Polska (C‑375/09, EU:C:2010:743, point 32). 26 See in this regard also the first sentence of recital 13 of Directive 2014/104, under which the right to compensation is recognised regardless of whether or not there has been a prior finding of an infringement by a competition authority. 27 See also in this regard, inter alia, judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 40 to 42). 28 In this sense also recitals 9 and 10 of Directive 2014/104. 29 See in this regard above, points 47 to 53 of this Opinion. 30 To the same effect, involving a criminal context, judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraphs 44 and 45). 31 See above, point 20 and footnote 6. 32 To the same effect, judgment of 3 March 1994, Vaneetveld (C‑316/93, EU:C:1994:82, paragraphs 16 to 18). 33 See point 20 above. 34 Judgments of 30 January 1974, BRT v SABAM (127/73, EU:C:1974:6, paragraph 16); of 18 March 1997, Guérin automobiles v Commission (C‑282/95 P, EU:C:1997:159, paragraph 39); of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 23); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 39); and of 5 June 2014, Kone and Others C‑557/12, EU:C:2014:1317, paragraph 20); to that effect also the first sentence of recital 3 of Directive 2014/104. 35 Fundamentally, in this regard, judgment of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraph 25); see also judgment of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraph 33), and of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, paragraph 98). 36 Judgments of 26 February 1986, Marshall (152/84, EU:C:1986:84, paragraph 48); of 14 July 1994, Faccini Dori (C‑91/92, EU:C:1994:292, paragraph 20); and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 42). 37 Fundamentally on the ‘effet d’exclusion’ see Opinion of Advocate-General Léger in Linster (C‑287/98, EU:C:2000:3, in particular points 57 and 67 to 89). 38 Judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, in particular paragraph 49). 39 See in this regard above points 60 to 64 of this Opinion. 40 Judgment of 14 June 2011, Pfleiderer (C‑360/09, EU:C:2011:389, paragraph 19). 41 On the right to compensation, see judgments of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 60 and 61); of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraph 21); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraphs 21 to 23), in each case relating to comparable problems in connection with the related provision of Article 101 TFEU (formerly Article 81 EC). 42 Judgments of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 62 and 64); of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraphs 25 to 27); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 24); see also recital 11 of Directive 2014/104. 43 Judgments of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 62); of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraph 27); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 25). 44 To that effect see also the judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 78 to 82), in which the Court assesses the length of the limitation period not least as a function of the time at which the limitation period begins to run and the possibility of interrupting this period. See also my Opinion in Joined Cases Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 109). 45 Unlike the rules under Norwegian law, for example, which were the subject of an evaluation of effectiveness in the judgment of the Court of Justice of the European Free Trade Association States (‘EFTA Court’) of 17 September 2018, Nye Kystlink AS v Color Group AS and Color Line AS (E‑10/17, paragraph 119). 46 See to that effect also the considerations in the previously cited judgment of the EFTA Court in Case E‑10/17, paragraph 118. 47 See in this regard above, point 74 of this Opinion. 48 Judgments of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 62 and 64); of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraphs 25 to 27); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 24); see also recital 11 of Directive 2014/104. 49 Judgment of 14 December 2000, Masterfoods v HB (C‑344/98, EU:C:2000:689, in particular paragraph 52, in conjunction with paragraphs 46 and 49). 50 Judgment of 13 July 2016, Pöpperl (C‑187/15, EU:C:2016:550, paragraph 43); see also judgments of 4 February 1988, Murphy and Others (157/86, EU:C:1988:62, paragraph 11), and of 11 January 2007, ITC (C‑208/05, EU:C:2007:16, paragraph 68). 51 Judgments of 14 July 1994, Faccini Dori (C‑91/92, EU:C:1994:292, paragraph 26); of 5 October 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 113, 115, 118 and 119); of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraphs 98 and 101); and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 39). 52 See in this regard above, points 60 to 64 of this Opinion. 53 To that effect, judgments of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 45); of 2 June 2016, Pizzo (C‑27/15, EU:C:2016:404, paragraph 32); and of 27 October 2016, Milev (C‑439/16 PPU, EU:C:2016:818, paragraph 31). 54 Judgment of 27 October 2016, Milev (C‑439/16 PPU, EU:C:2016:818, paragraph 32); see also judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraphs 122 and 123). 55 See again, in that regard, above, points 60 to 64 of this Opinion. In this respect the main proceedings differs from the case that was recently the subject of the judgment of 17 October 2018, Klohn (C‑167/17, EU:C:2018:833, paragraph 39 et seq.). 56 See above in this regard, in particular point 53 of this Opinion. 57 See above, in this regard, point 93 of this Opinion. 58 Judgments of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 110); of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 32); and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 40).