Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04), Antonio Cannito v Fondiaria Sai SpA (C-296/04) and Nicolò Tricarico (C-297/04) and Pasqualina Murgolo (C-298/04) v Assitalia SpA.
Date: 2006-07-13
26. In accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for by Article 234 EC it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 59, and Case C-316/04 Stichting Zuid-Hollandse Milieufederatie  [2005] ECR I-9759, paragraph 29).
27. However, the Court has also stated that, in exceptional circumstances, it is for the Court to examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia  [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the 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 give a useful answer to the questions submitted to it (see, inter alia, Bosman , cited above, paragraph 61, and Stichting Zuid-Hollandse Milieufederatie , cited above, paragraph 30).
29. In that respect, the order for reference and the written and oral observations have given the Court sufficient information to enable it to interpret the rules of Community law in relation to the situation which is the subject of the main proceedings (see, in particular, Case C-316/93 Vaneetveld  [1994] ECR I-763, paragraph 14, and Case C-378/97 Wijsenbeek [1999] ECR I-6207, paragraph 21).
30. Contrary to the claims of Assitalia, it is not obvious that interpretation of Article 81 EC bears no relation to the facts of the main action or its purpose. Consequently, the objection raised by Assitalia alleging the inapplicability of that article to the cases in the main action does not relate to the admissibility of these proceedings but concerns the substance of the first question.
31. Moreover, it should be recalled that Articles 81 EC and 82 EC are a matter of public policy which must be automatically applied by national courts (see, to that effect, Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraphs 39 and 40).
38. Next, in accordance with settled case-law, Community competition law and national competition law apply in parallel, since they consider restrictive practices from different points of view. Whereas Articles 81 EC and 82 EC regard them in the light of the obstacles which may result for trade between Member States, national law proceeds on the basis of considerations peculiar to it and considers restrictive practices only in that context (see, inter alia, Case 14/68 Wilhelm and Others [1969] ECR 1, paragraph 3, Joined Cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others  [1980] ECR 2327, paragraph 15, and Case C-137/00 Milk Marque and National Farmers’ Union  [2003] ECR I-7975, paragraph 61).
39. It should also be borne in mind that Articles 81(1) EC and 82 EC produce direct effects in relations between individuals and create rights for the individuals concerned which the national courts must safeguard (see Case 127/73 BRT and SABAM  [1974] ECR 51, paragraph 16 (‘BRT I’) , Case C-282/95 P Guérin Automobiles v Commission  [1997] ECR I-1503, paragraph 39, and Case C-453/99 Courage and Crehan [2001) ECR I-6297, paragraph 23) and that the primacy of Community law requires any provision of national law which contravenes a Community rule to be disapplied, regardless of whether it was adopted before or after that rule (see, inter alia, Case C-198/01 CIF  [2003] ECR I-8055, paragraph 48).
40. However, as is already clear from the wording of Articles 81 EC and 82 EC, in order for the Community competition rules to apply to an arrangement or abusive practice it is necessary for it to be capable of affecting trade between Member States.
41. The interpretation and application of that condition relating to effects on trade between Member States must take as its starting-point the fact that its purpose is to define, in the context of the law governing competition, the boundary between the areas respectively covered by Community law and the law of the Member States. Thus, Community law covers any agreement or any practice which is capable of affecting trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off national markets or by affecting the structure of competition within the common market (see, to that effect, Case 22/78 Hugin  v Commission  [1979] ECR 1869, paragraph 17, and Case C-475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 47).
42. For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States (see Case 42/84 Remia and Others  v Commission  [1985] ECR 2545, paragraph 22, and Ambulanz Glöckner , cited above, paragraph 48). Moreover, that influence must not be insignificant (Case C-306/96 Javico  [1998] ECR I-1983, paragraph 16).
43. Thus, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (see Bagnasco and Others , cited above, paragraph 47, and Case C-359/01 P British Sugar v Commission [2004] ECR I‑4933, paragraph 27).
44. In that regard it should be stated, as the Advocate General rightly pointed out in paragraph 37 of his Opinion, that the mere fact that the participants in a national arrangement also include undertakings from other Member States is an important element in the assessment, but, taken alone, it is not so decisive as to permit the conclusion that the criterion of trade between Member States being affected has been satisfied.
45. On the other hand, the fact that an agreement, decision or concerted practice relates only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected (see Case 246/86 Belasco and Others v Commission [1989] ECR 1-2117, paragraph 33). An agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren  v Commission [1972] ECR 977, paragraph 29, Remia and Others  v Commission , cited above, paragraph 22, and Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 48).
46. Further, in the case of services, the Court has already held that an influence on the pattern of trade between Member States may consist in the activities in question being conducted in such a way that their effect is to partition the common market and thereby restrict freedom to provide services, which constitutes one of the objectives of the Treaty (see Case 30/87 Bodson  [1988] ECR 2479, paragraph 24, and Ambulanz Glöckner , cited above, paragraph 49).
48. However, when giving a preliminary ruling the Court may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, inter alia, Case C-79/01 Payroll and Others  [2002] ECR I-8923, paragraph 29).
49. In that regard, according to the case-law of the Court, since the market concerned is susceptible to the provision of services by operators from other Member States, the members of a national price cartel can retain their market share only if they defend themselves against foreign competition (see, as regards imports, Belasco and Others v Commission , paragraph 34, and British Sugar v Commission , paragraph 28, both cited above).
57. According to settled case-law, that principle of invalidity can be relied on by anyone, and the courts are bound by it once the conditions for the application of Article 81(1) EC are met and so long as the agreement concerned does not justify the grant of an exemption under Article 81(3) EC (see on the latter point, inter alia, Case 10/69 Portelange  [1969] ECR 309, paragraph 10). Since the invalidity referred to in Article 81(2) EC is absolute, an agreement which is null and void by virtue of this provision has no effect as between the contracting parties and cannot be invoked against third parties (Case 22/71 Béguelin  [1971] ECR 949, paragraph 29). Moreover, it is capable of having a bearing on all the effects, either past or future, of the agreement or decision concerned (see Case 48/72 Brasserie de Haecht  [1973] ECR 77, paragraph 26, and Courage and Crehan , cited above, paragraph 22).
59. It follows that any individual can rely on a breach of Article 81 EC before a national court (see Courage and Crehan , cited above, paragraph 24) and therefore rely on the invalidity of an agreement or practice prohibited under that article.
60. Next, as regards the possibility of seeking compensation for loss caused by a contract or by conduct liable to restrict or distort competition, it should be recalled that the full effectiveness of Article 81 EC and, in particular, the practical effect of the prohibition laid down in Article 81(1) EC 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 , cited above, paragraph 26).
61. It follows that any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81 EC.
62. 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 tribunals 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 actions (princi ple of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see Case C-261/95 Palmisani  [1997] ECR I-4025, paragraph 27, and Courage and Crehan , cited above, paragraph 29).
64. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to prescribe the detailed rules governing the exercise of that right, including those on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed.
The second question in Case C-298/04
70. First, as for whether Article 33(2) of Law No 287/90 applies only to actions for damages based on infringement of national competition rules or also to actions for damages based on infringement of Articles 81 EC and 82 EC, it is not for the Court to interpret national law or to assess its application in the present case (see, inter alia, Case C-435/93 Dietz  [1996] ECR I-5223, paragraph 39, and Case C‑265/04 Bouanich  [2006] ECR I-0000, paragraph 51).
71. Secondly, as follows from paragraph 62 of this judgment, 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 tribunals having jurisdiction and to prescribe 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 actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness).
77. As was pointed out in paragraph 62 of this judgment, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules observe the principles of equivalence and effectiveness.
78. A national rule under which the limitation period begins to run from the day on which the agreement or concerted practice was adopted could make it practically impossible to exercise the right to seek compensation for the harm caused by that prohibited agreement or practice, particularly if that national rule also imposes a short limitation period which is not capable of being suspended.
79. In such a situation, where there are continuous or repeated infringements, it is possible that the limitation period expires even before the infringement is brought to an end, in which case it would be impossible for any individual who has suffered harm after the expiry of the limitation period to bring an action.
80. It is for the national court to determine whether such is the case with regard to the national rule at issue in the main proceedings.
89. In accordance with settled case-law, the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see, inter alia, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 16, Case C-213/89 Factortame and Others  [1990] ECR I-2433, paragraph 19, and Courage and Crehan , cited above, paragraph 25).
90. As was pointed out in paragraph 60 of this judgment, the full effectiveness of Article 81 EC and, in particular, the practical effect of the prohibition laid down in Article 81(1) EC 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.
91. Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community ( Courage and Crehan , cited above, paragraph 27).
92. As to the award of damages and the possibility of an award of punitive damages, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to set the criteria for determining the extent of the damages, provided that the principles of equivalence and effectiveness are observed.
93. In that respect, first, in accordance with the principle of equivalence, it must be possible to award particular damages, such as exemplary or punitive damages, pursuant to actions founded on the Community competition rules, if such damages may be awarded pursuant to similar actions founded on domestic law (see, to that effect, Brasserie du pêcheur and Factortame , cited above, paragraph 90).
94. However, it is settled case-law that Community law does not prevent national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them (see, in particular, Case 238/78 Ireks-Arkady  v Council and Commission  [1979] ECR 2955, paragraph 14, Joined Cases C-441/98 and C-442/98 Michaïlidis  [2000] ECR I-7145, paragraph 31, and Courage and Crehan , cited above, paragraph 30).
96. Total exclusion of loss of profit as a head of damage for which compensation may be awarded cannot be accepted in the case of a breach of Community law since, especially in the context of economic or commercial litigation, such a total exclusion of loss of profit would be such as to make reparation of damage practically impossible (see Brasserie du pêcheur and Factortame , cited above, paragraph 87, and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 91).
97. As to the payment of interest, the Court pointed out in paragraph 31 of Case C‑271/91 Marshall [1993] ECR I-4367 that an award made in accordance with the applicable national rules constitutes an essential component of compensation.
98. It follows that the answer to the fourth question in Cases C-295/04 to C-297/04 and the fifth question in Case C-298/04 must be that, in the absence of Community rules governing that field, it is for the domestic legal system of each Member State to set the criteria for determining the extent of the damages for harm caused by an agreement or practice prohibited under Article 81 EC, provided that the principles of equivalence and effectiveness are observed.