Kone AG and Others v ÖBB-Infrastruktur AG.
Date: 2014-06-05
20. It should be recalled that Articles 101(1) TFEU and 102 TFEU produce direct effects in relations between individuals and create rights for the individuals concerned, which the national courts must safeguard (see Case C‑127/73 BRT and SABAM  EU:C:1974:25, paragraph 16; Courage and Crehan  EU:C:2001:465, paragraph 23; and Manfredi and Others  EU:C:2006:461, paragraph 39).
21. The full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in paragraph 1 of that provision 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 ( Courage and Crehan  EU:C:2001:465, paragraph 26; Manfredi and Others  EU:C:2006:461, paragraph 60; Case C‑199/11 Otis and Others  EU:C:2012:684, paragraph 41; and Case C‑536/11 Donau Chemie and Others  EU:C:2013:366, paragraph 21).
22. Any person is thus entitled to claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101 TFEU ( Manfredi and Others  EU:C:2006:461 paragraph 61, and Otis and Others  EU:C:2012:684, paragraph 43).
23. The right of any individual to claim compensation for such a loss actually strengthens the working of the European Union competition rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, thereby making a significant contribution to the maintenance of effective competition in the European Union ( Courage and Crehan  EU:C:2001:465, paragraph 27; Manfredi and Others  EU:C:2006:461, paragraph 91; Pfleiderer  EU:C:2011:389, paragraph 29; Otis and Others  EU:C:2012:684, paragraph 42; and Donau Chemie and Others  EU:C:2013:366, paragraph 23).
24. In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to claim compensation for the harm resulting from an agreement or practice prohibited under Article 101 TFEU, including those on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed ( Manfredi and Others  EU:C:2006:461, paragraph 64).
25. Accordingly, the rules applicable to actions for safeguarding rights which individuals derive from the direct effect of EU law must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) ( Courage and Crehan  EU:C:2001:465, paragraph 29; Manfredi and Others  EU:C:2006:461, paragraph 62; Pfleiderer  EU:C:2011:389, paragraph 24; and Donau Chemie and Others  EU:C:2013:366, paragraph 27).
26. In that regard, and specifically in the context of competition law, those rules must not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see Case C‑439/08 VEBIC  EU:C:2010:739, paragraph 57; Pfleiderer  EU:C:2011:389, paragraph 24; and Donau Chemie and Others EU:C:2013:366, paragraph 27).
32. It is true, as pointed out in paragraph 24 of the present judgment, that it is, in principle, for the domestic legal system of each Member State to lay down the detailed rules governing the application of the concept of the ‘causal link’. However, it is clear from the case-law of the Court, referred to in paragraph 26 of the present judgment, that that national legislation must ensure that European Union competition law is fully effective (see, to that effect, VEBIC  EU:C:2010:739, paragraph 63). Those rules must therefore specifically take into account the objective pursued by Article 101 TFEU, which aims to guarantee effective and undistorted competition in the internal market, and, accordingly, prices set on the basis of free competition. In those circumstances, the Court has held, as noted in paragraph 22 of the present judgment, that national legislation must recognise the right of any individual to claim compensation for loss sustained.
36. The appellants maintain, moreover, that such damages are likely to dissuade the undertakings concerned from assisting the competition authorities to investigate cases, which runs contrary to the principle of effectiveness. However, it must be noted that the leniency programme is a programme developed by the Commission, through its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), which has no legislative force and is not binding on Member States ( Pfleiderer  EU:C:2011:389, paragraph 21). Consequently, that leniency programme cannot deprive individuals of the right to obtain compensation before the national courts for loss sustained as a result of an infringement of Article 101 TFEU.