ECJ: Binding Effect for Nullity under Art 101 TFEU

May 19, 2023 Benn-Ibler Rechtsanwälte

The European Court of Justice has ruled that in the context of actions for annulment under Art 101(2) of the Treaty on the Functioning of the European Union (hereinafter TFEU), for infringements of competition law, those previously issued decisions in which infringements of competition law were established by a final decision have binding effect.

In the original case, petrol station operators brought an action for annulment of contracts concluded with Repsol (a Spanish mineral oil company) on the grounds that Repsol had fixed the retail price contrary to Art 101(1) TFEU. Such conduct on the part of Repsol had previously been established in final judgments of Spanish courts. The plaintiffs referred to these rulings as proof.

According to Spanish case law, however, such decisions are not binding in the context of actions for annulment under Article 101(2) TFEU.

The ECJ ruled as follows:

While Directive (EU) 2014/104 provides that final decisions of national competition authorities or courts finding an infringement of competition shall be irrefutable evidence thereof in actions for damages under Art 101 or 102 TFEU (implemented in Austria by Article 37i(2) Kartellgesetz). However, this explicitly only applies to actions for damages, but not to actions for the annulment of contracts under Art 101(2) TFEU.

Art 2 of Regulation 1/2003, which adopts rules implementing Articles 101 and 102 TFEU, places the entire burden of proof on the claimant in actions for damages and annulment. However, a complete disregard of final decisions finding anti-competitive behaviour would be contrary to the principle of effectiveness, as it would make it excessively difficult to assert claims.

If anti-competitive behaviour has been established in a final decision of national courts or authorities, this shall also be deemed established in the context of actions for damages and nullity until the defendant proves the contrary. The burden of proof thereby shifts to the defendant in this respect, provided that the nature of the infringement alleged in the action, as well as its material, personal, territorial, and temporal dimension correspond to the nature and scope of the infringement found in the decision.

ECJ C-25/21 (20.04.2023)