The EFTA Court with its judgment of 17 September 2018 (reference no. Case E-10/17 – Nye Kystlink AS and Color Group AS and Color Line AS) has confirmed that lawsuits against antitrust offenders can face deadline restrictions, but this should not make them « impossible or excessively difficult ». The EFTA Court stated that the compliance of national rules on limitations with the principle of effectiveness has to be guaranteed and assessed on a case by case basis. The application of such limitation periods shall not make it impossible or excessively difficult to bring an action for damages.
In December 2011, the EFTA Surveillance Authority (“ESA”) found that the provider of ferry services Color Line (the defendant) had infringed Articles 53 and 54 EEA by their exclusivity agreement with the Municipality of Strömstad between 1994 and 2005. Later, Nye Kystlink AS (the plaintiff) brought an action before Norwegian courts against the defendant claiming damages. The Oslo District Court dismissed the action because the three-year limitation period (cf. Section 9(1) of the Limitation Act) had expired, rendering the claim time-barred. The plaintiff decided to appeal that judgment to the Borgarting Court of Appeal which referred several questions on the interpretation and application of national limitation periods to the EFTA Court.
Three questions referred to the EFTA Court
The first question referred to the EFTA Court was whether under the principle of equivalence the extended one-year limitation, applicable to damages resulting from criminal offences should be applied to damages caused by infringements of the EEA antitrust provisions. The EFTA Court stated that this would only be the case if such a rule would have a similar purpose, cause of action and essential characteristics. The rules might only be relied upon if the infringement of national/EEA competition law would amount to a criminal offence under national law.
The second and third questions referred to the EFTA Court concerned whether under the principles of equivalence and effectiveness the three-year subjective limitation period under Norwegian law could expire prior to the adoption of the decision by the “ESA”. Concerning the duration and starting point of the limitation period, the EFTA Court stated that in order to comply with the principle of effectiveness and to ensure legal certainty, the limitation period must be fixed in advance. Regarding the starting point of the limitation period, the Court argued that it starts running when the injured party is in possession “of such information that, despite uncertainty about the outcome of a court case, he has reasonable grounds for having the question of liability assessed by the courts”. Even if this assessment is discretionary in nature and requires a case by case analysis, in most situations, it might be necessary for claimants to wait for the result of the administrative investigations. In addition to the duration and starting point of the limitation period, the Court also looked at potential grounds for the suspension or interruption of the limitation period. As long as the limitation period is not overly short and can be interrupted or suspended, it should not be contrary to the principle of effectiveness. It is for national courts to ensure that such options are available in practice.
This judgment confirms the right to claim for damages in case of an infringement of EEA competition law and clarifies the application of the limitation periods in damage actions. A limitation period of three years as of the subjective knowledge of the relevant facts is acceptable as long as the application of such a limitation period does not make it impossible or excessively difficult to bring an action for damages for an infringement of EEA competition rules.
by Yaël Rager and Till Schreiber