Opinion of the Advocate General — ECLI:EU:C:2001:181
Date: 2001-03-22
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

SUMMARY — CASE C-453/99 
Summary of the Judgment 
1. Competition — Agreements — Contract liable to restrict or distort competition — 
Right of a party to the contract to rely on the breach of Article 85 of the Treaty (now 
Article 81 EC) to obtain relief 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
2. Competition — Agreements — Contract liable to restrict or distort competition — 
Right of a party to the contract to claim damages for loss caused by performance of 
that contract — Limits 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
1. A party to a contract liable to restrict 
or distort competition within the mean­
ing of Article 85 of the Treaty (now 
Article 81 EC) can rely on the breach 
of that provision to obtain relief from 
the other contracting party. 
(see para. 36 and operative part 1) 
2. The full effectiveness of Article 85 of 
the Treaty (now Article 81 EC) and, in 
particular, the practical effect of the 
prohibition laid down in Article 85(1) 
would be put at risk if it were not open 
to any individual to claim damages for 
loss caused to him by a contract or by 
conduct liable to restrict or distort 
competition. Indeed, the existence of 
such a right strengthens the working of 
the Community competition rules and 
discourages agreements or practices, 
which are frequently covert, which 
are liable to restrict or distort competi­
tion. 
Article 85 of the Treaty therefore pre­
cludes a rule of national law under 
which a party to a contract liable to 
restrict or distort competition within 
the meaning of that provision is barred 
from claiming damages for loss caused 
by performance of that contract on the 
sole ground that the claimant is a party 
to that contract. 
However, 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 tribu­
nals having jurisdiction and to lay 
down the detailed procedural rules 
governing actions for safeguarding 
rights which individuals derive directly 
from Community law, provided that 
such rules are not less favourable than 
those governing similar domestic 
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COURAGE AND CREHAN 
actions (principle of equivalence) and 
that they do not render practically 
impossible or excessively difficult the 
exercise of rights conferred by Com­
munity law (principle of effectiveness). 
Under those conditions, Community 
law does not preclude national law 
from denying a party who is found to 
bear significant responsibility for the 
distortion of competition the right to 
obtain damages from the other con­
tracting party. Under a principle which 
is recognised in most of the legal 
systems of the Member States and 
which the Court has applied in the 
past, a litigant should not profit from 
his own unlawful conduct, where this 
is proven. 
In particular, it is for the national court 
to ascertain whether the party who 
claims to have suffered loss through 
concluding a contract that is liable to 
restrict or distort competition found 
himself in a markedly weaker position 
than the other party, such as seriously 
to compromise or even eliminate his 
freedom to negotiate the terms of the 
contract and his capacity to avoid the 
loss or reduce its extent, in particular 
by availing himself in good time of all 
the legal remedies available to him. 
(see paras 26-27, 29, 31, 33, 
36 and operative part 2-3) 
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