Information;Order — ECLI:EU:C:2023:166
Date: 2023-03-06
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary of the Decision 
of 4 December 2013 was published in the Official Journal of the EU of 30 June 
2017. 
It was argued in the application that the limitation period for bringing the action 
for damages was that laid down in Article 10 of Directive 2014/104/EU. In other 
words, a period of at least five years from the date of publication of the summary 
of the Decision in the Official Journal of the European Union. 
Second.- The action was allowed to proceed by reasoned decision of 
26 November 2020, which directed that the defendant be ordered to enter an 
appearance. 
Third.- A defence was lodged … in the name and on behalf of Deutsche Bank, 
AG on 22 December 2020, contesting the claim against it on the basis of the 
relevant facts and grounds. 
Inter alia, the defendant submitted that the action brought was time-barred since, 
in its view, it was not possible to apply the five-year limitation period laid down in 
the directive referred to (2014/104) because the facts pre-dated the entry into force 
of that directive. The defendant relied in the defence on the judicial criterion 
applying to actions of that kind the one-year limitation period for making a claim, 
on the ground that it is an action based on non-contractual liability, which is 
subject to the limitation period provided for in Article 1968 of the Código Civil 
(Civil Code). 
Fourth.- Following the lodging of the defence, the preliminary hearing was held 
on 23 September 2021. On that date, the parties reaffirmed the forms of order 
sought, provided further detail about the facts and grounds on which their initial 
claims were based, and offered evidence. The applicant raised at that time the 
possibility of applying the limitation period referred to in the Código Civil de 
Cataluña (Catalan Civil Code) for actions based on non-contractual liability 
(three-year limitation period), in the event that the limitation period provided for 
in the directive cited was not applicable. 
Fifth.- The trial took place on 14 January 2022, when the evidence offered was 
heard and the lawyers assessed that evidence in their submissions, the defendant 
arguing that the action was time-barred and the applicant arguing that the directive 
was applicable, and, in the alternative, that the limitation period laid down in the 
Catalan legislation was applicable.  
DEUTSCHE BANK 
 
3 
Anonymised version 
The case file is before the judge and is awaiting and set down for judgment. 
Sixth.- By procedural decision of 20 January 2022, the parties were asked for 
their submissions on the possibility of referring for a preliminary ruling to the 
Court of Justice of the European Union a number of questions relating to 
calculation of the limitation period for an action for damages derived from a 
previous penalty, which was imposed by the Commission for concerted practices 
where the injured parties were consumers. 
Seventh.- The applicant was in favour of seeking a preliminary ruling and 
expanded the questions to be referred to the Court. However, the defendant argued 
that it was not necessary because a reference for a preliminary ruling in the same 
vein has already been made and those proceedings have been concluded and 
judgment is pending. 
Eighth.- On 9 February 2022, the case file was remitted to the judge for a 
decision. 
LAW 
FIRST.- Further details about the facts which enable this court to make a 
reference for a preliminary ruling to the Court of Justice of the European 
Union (CJEU). 
1. As stated in the Facts section of this order, QJ has brought an action for 
damages against a financial institution which has been penalised by the European 
Commission. The Commission Decision, published in the Official Journal of the 
European Union (OJEU) on 30 June 2017, is based on Article 101 of the Treaty 
on the Functioning of the European Union (TFEU), relating to the imposition of 
penalties for conduct contrary to the rules on competition in the market. 
The decision which is the starting point for this claim is final and imposes 
penalties on a number of financial institutions, including Deutsche Bank, AG, for 
acts affecting determination of the Euribor, the European reference index for 
transactions and financial contracts of different types. 
2. It is common ground that Mr QJ is a consumer; it is also common ground 
that, on 24 May 2005, he took out a mortgage loan with a third party financial 
institution which is not a party to these proceedings, in which the reference rate 
for the calculation of ordinary interest was the 12 month Euribor index. It is also 
common ground that the mortgage loan agreement was concluded within a period 
which may be affected by the cartel penalised by the European Commission. 
3. The questions which this court refers to the CJEU relate exclusively to the 
criteria for determining the limitation period for bringing actions for damages 
derived from breaches of competition decided under Article 101 of the TFEU, 
where any parties who may be harmed by that conduct are consumers. 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2022 – CASE C-198/22 
 
4  
Anonymised version 
This court believes that, for the purpose of referring the questions, it is helpful to 
identify a number of facts which are not in dispute in the national proceedings: 
(1) The facts giving rise to the Commission Decision imposing the penalty 
occurred a long time before the entry into force of the EU Damages Directive 
(Directive 2014/104/EU). 
(2) The summary of the decision was published after the directive entered into 
force and after it was transposed into Spanish law (by Law 9/2017 of 26 May 
2017). 
(3) On 18 September 2020, Mr QJ’s lawyers sent an initial letter by post to 
Deutsche Bank, AG, claiming damages for the loss suffered. 
(4) This action was brought on 6 October 2020. 
SECOND.- Provisions and case-law of the CJEU which have a bearing on the 
reference for a preliminary ruling. 
1. The applicable provision of EU law is Article 101 of the TFEU; that 
provision and its subsequent legislative development enable individuals affected 
by a collusive agreement to institute civil proceedings for damages. 
In so far as the facts precede the adoption of Directive 2014/104/EU, the principle 
of procedural autonomy of the Member States allows each country to stipulate the 
proceedings and limitation periods for bringing actions for damages which may be 
instituted by affected individuals. 
2. In accordance with Spanish judicial practice, actions for damages are 
considered to be actions based on non-contractual liability, particularly where 
such actions are brought against undertakings which have been penalised for anti-
competitive conduct but have not entered into a contract directly with the injured 
parties. The non-contractual nature of those actions determines the application of 
the national limitation periods for bringing proceedings. 
Specifically, in the case of Spain, Article 1968 of the Civil Code, which sets a 
limitation period of one year for bringing an action, applies, although in a number 
of situations the application of a three-year limitation period is possible, in 
accordance with the specific law of the Autonomous Community of Catalonia 
(Article 121-20 of the Catalan Civil Code); however, the Tribunal Supremo 
(Supreme Court, Spain) has rejected that limitation period.  
3. In accordance with Article 22 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, measures on 
bringing actions for damages provided for in that directive are not directly 
applicable to facts preceding the entry into force of the directive. 
DEUTSCHE BANK 
 
5 
Anonymised version 
Article 10 of Directive 2014/104 sets out reasonable guidelines to enable Member 
States to lay down rules governing the limitation periods for bringing such 
actions, setting a five-year limitation period as a minimum standard. 
Since that directive cannot apply directly to facts arising before its entry into 
force, the criterion for determining the limitation period for bringing those actions 
and the determination of the date on which the limitation period starts to run is left 
to the national legislatures, while the general criterion stipulated for establishing 
the date when that period starts to run is the date of publication of the European 
Commission Decision. 
4. In so far as judgment of the CJEU is pending in a reference for a preliminary 
ruling from the Audiencia Provincial de León (Provincial Court, Leon, Spain) in 
that connection (Case C-267/20), and in so far as the Opinion of the Advocate 
General of 28 October 2021 (EU:C:2021:884) in that case has been published, 
criteria for the determination of the limitation period for bringing actions for 
damages and determination of the date on which that period starts to run will 
certainly be provided by the CJEU reasonably soon, thereby answering the 
questions referred by the Audiencia Provincial de León (Provincial Court, Leon). 
5. Although the reply to that reference for a preliminary ruling is pending, this 
court believes, however, that the facts examined in the reference from the 
Audiencia Provincial de León (Provincial Court, Leon) are different, or, at least, 
require a degree of qualification when considered together with the case-law of 
the CJEU on the interpretation of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts. 
The reference for a preliminary ruling from the Audiencia Provincial de León 
(Provincial Court, Leon) was made in proceedings between two commercial 
operators: a truck manufacturer, to which the Commission decision imposing a 
penalty was applicable, and the purchaser of a truck in Spain, who used the 
vehicle in the course of his trade or profession. 
However, in the present case, the applicant is an individual who has the status of 
consumer and who took out the mortgage loan to buy his usual residence. In other 
words, the injured party is a consumer and the loss caused is derived from a 
contract of the kind covered by Directive 93/13/EEC. 
6. If the CJEU considers that injured parties’ actions and claims flowing from 
the application of Directive 2014/104/EU are completely separate from actions 
and claims flowing from Directive 93/13/EEC, any ruling which the Court of 
Justice may give in Case C-267/20 will certainly answer the questions raised by 
this court in the present case. 
7. However, it is this court’s view that the Court of Justice must take into 
account how the case-law of the CJEU on the limitation period for actions for 
damages resulting from the nullity of terms that have been held to be unfair fits in. 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2022 – CASE C-198/22 
 
6  
Anonymised version 
The Court of Justice has stated in a number of rulings that determination of the 
limitation period for bringing actions for damages is a matter which must be 
stipulated by the legislature of each Member State, although the Court of Justice 
has laid down a number of criteria for identifying the discretion which Member 
States have for setting those limitation periods. All of the foregoing is aimed at 
guaranteeing the principle of effectiveness of EU law. 
8. Thus, for example, in matters relating to consumer protection, the CJEU has 
two references for a preliminary ruling pending before it which were submitted by 
Spanish courts in relation to the date on which the limitation period starts to run 
for actions for damages brought as a result of the nullity of unfair terms (Case 
C-811/21, a reference for a preliminary ruling from the 15th Chamber of the 
Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain) and the 
order of the Spanish Supreme Court of 22 July 2021, the case number of which 
this court does not have). 
9. Although, formally, the objective scope of Directive 2014/104/EU and that 
of Directive 93/13/EEC are different, the fact is that both are aimed at the proper 
functioning of the internal market, both refer to collusive or abusive conduct 
which distorts the functioning of the internal market by placing one of the parties 
in a position of weakness or imbalance, which not only creates harm at the time 
the contract is entered into but may also be transferred to legal proceedings. 
10. The case-law of the CJEU in relation to examination of the limitation period 
for bringing an action for damages as a result of the nullity of an unfair term led 
the Court of Justice to state: ‘as regards the starting point laid down with regard 
to the limitation period examined, there is, in circumstances such as those in the 
main proceedings, a real risk that the consumer will not rely on the rights 
conferred on him or her by Union law’ (judgment of 5 March 2020, OPR-
Finance, C-679/18, EU:C:2020:16). The Court of Justice also stated that ‘it is 
necessary to take account of the weaker position of consumers vis-à-vis sellers or 
suppliers, as regards both their bargaining power and their level of knowledge, 
and the fact that it is possible that the consumers are not aware of the unfair 
nature of a term in the agreement concluded with a seller or supplier or do not 
appreciate the extent of their rights deriving from Directive 93/13 or Directive 
2008/48 (see, to that effect, judgments of 9 July 2020, Raiffeisen Bank and BRD 
Groupe Société Générale, C-698/18 and C-699/18, EU:C:2020:537, 
paragraphs 65 to 67, and of 16 July 2020, Caixabank and Banco Bilbao Vizcaya 
Argentaria, C-224/19 and C-259/19, EU:C:2020:578, paragraph 90 and the case-
law cited).’ That case-law is set out in the judgment of the Court of Justice of 
22 April 2021 (EU:C:2021:313). 
11. As stated above, the case-law has its origins in Directive 93/13/EEC. The 
questions referred to the Court of Justice in this case are based on the principle of 
effectiveness and refer to the possibility of transferring that case-law to situations 
where claims for damages are brought by consumers on the basis of Article 101 of 
the TFEU. 
DEUTSCHE BANK 
 
7 
Anonymised version 
Where actions are subject to a limitation period of one year from the date of 
publication of the summary of the Commission Decision in the OJEU, an average 
consumer, who is reasonably well-informed, observant and circumspect, may not 
know or may be unaware of the extent of the rights attributed to consumers in 
Commission decisions imposing penalties for collusive practices which have a 
direct effect on consumers. This renders ineffective the protection mechanisms for 
consumers affected by such collusive practices, since thousands of possible 
injured parties may be unaware that a penalty imposed by the Commission can be 
the basis for bringing an action for damages. 
THIRD.- In view of the fact that the courts of the Member States may refer to the 
Court of Justice questions relating to the interpretation or the validity of EU law if 
they consider a decision of the Court of Justice on the matter is necessary to 
enable them to give judgment (pursuant to the second paragraph of Article 267 
TFEU); and also in view of the fact that a request for preliminary ruling may 
prove to be particularly helpful where the national court is seised of a new 
question of interpretation which is of general interest for the purpose of the 
uniform application of EU law, or where the existing case-law does not appear to 
offer the necessary clarity in a legal or factual context that has not been dealt with 
before: 
This court refers to the CJEU the following questions that are necessary in order 
to give a ruling on the dispute in the case before it. 
On those grounds 
THIS COURT ORDERS and decides that the following questions which are 
necessary in order to give judgment in these proceedings are hereby referred to the 
Court of Justice of the European Union: 
1) Are Article 101 TFEU and the principle of effectiveness to be interpreted as 
precluding an interpretation of a national provision and national legal practice to 
the effect that the limitation period of five years for bringing an action laid down 
in Article 10 of Directive 2014/104/EU is not applicable retroactively where the 
person affected by the collusive practice is a consumer? 
2) Must a national provision or a national legal practice pursuant to which, 
where a consumer is the party harmed by a collusive practice in respect of which a 
penalty has been imposed, the date on which the limitation period for bringing an 
action for damages starts to run is set by reference to the publication of the 
decision imposing the penalty in the Official Journal of the European Union, 
without the court being certain that an average consumer, who is reasonably well 
informed, observant and circumspect, has become aware of the penalty and of the 
effect that it may have on the goods or services that he has purchased which are 
affected by the anti-competitive practice, be considered to be contrary to the 
principle of effectiveness in the interpretation of Article 101 of the TFEU? 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2022 – CASE C-198/22 
 
8  
Anonymised version 
3) May the national court apply the limitation period of at least five years for 
bringing actions for damages where any loss or harm has been suffered by a 
consumer, even though the facts arose prior to the entry into force of Directive 
2014/104? 
[…] 
[Stay of proceedings, closing standard wording and signature of judge]