In Heureka, the ECJ commented on the relationship between Commission decisions and knowledge triggering the limitation period and issued ‘guidelines’. In Nissan Iberia, the opportunity now has presented itself to continue this case law in the context of decisions by national competition authorities. This article analyses the opinion of Advocate General Medina.

I. Introduction

Just under a year ago, in the Heureka case, the ECJ further developed its case law on questions of limitation periods applicable to competition law damages claims. Among other things, it stated that the knowledge required for the commencement of the limitation period must generally be assumed upon publication of the summary of the Commission decision in the Official Journal (ECJ, 18 April 2024, C-605/21, ECLI:EU:C:2024:324 at [66 et seqq.] – Heureka. For a detailed analysis see Kersting, WuW 2024, 455 et seqq.). In her opinion in the Nissan Iberia case, Advocate General Medina has now had the opportunity to analyse the extent to which this case law can be applied to decisions by national competition authorities (Opinion of AG Medina in Nissan Iberia (C-21/24), 3 April 2025, EU:C:2025:248). This article aims to highlight some aspects of her opinion.

II. Questions referred to the ECJ

As a starting point, the Advocate General deals with the questions referred. The first question referred, which distinguishes between the obligation and the possibility to bring an action, is hardly comprehensible – at least without in-depth knowledge of Spanish limitation law and the Spanish debate. The Advocate General rightly considers it inadmissible because it appears to arise solely from Spanish law without a sufficient link to European law (Opinion (C-21/24) at [23 et seq.]).

The other questions referred are also not very clear. The Advocate General has therefore reformulated them: „the referring court asks, in essence, first, whether Article 101 TFEU and the principle of effectiveness must be interpreted as not precluding national legislation, as interpreted by the relevant national courts, which provides that the limitation period – applicable to actions for damages for an infringement of the provisions of EU competition law, established by a decision of the NCA (follow-on action for damages) – does not start to run before the date on which that decision: (a) became final, where appropriate, after its confirmation by the relevant national courts; (12) and/or (b) was published on the website of that NCA, but has not yet become final. In that connection, the referring court asks, secondly, in essence, whether the Court’s approach in the judgment in Heureka (relating to follow-on actions based on Commission decisions, a summary of which is published in the Official Journal) can be transposed to a case such as the one in the main proceedings (relating to NCA decisions, which are published only on the NCA website).“ (Opinion (C-21/24) at [31]).

The reformulated question is also not entirely convincing. While sub-question 2 on the transferability of the ECJ’s Heureka decision on Commission decisions to decisions of national competition authorities correctly captures the central thrust of the referring court’s questions, this does not apply to the first sub-question. The referring court does not want to know whether a certain result under national law is compatible with European law, but rather asks what result European law prescribes for national law and, in this respect, provides two alternatives.

III. Suggested Answer

As a result, the Advocate General’s proposed answer is not entirely convincing either. She correctly demands that the decision of the national competition authority must be final and legally binding for the commencement of the limitation period (Opinion (C-21/24), at [50 et seqq.], [59 et seqq.], [90], [96]). However, the proposed answer only states that European law does not preclude such a statement by national law. Yet, this implies the possibility that other solutions under national law are also compatible with European law. Yet, this is not the case and is probably not what the Advocate General meant.

On the merits, the Advocate General is right. As already explained in the wake of the ECJ’s Heureka decision, the consistent application of the decision to cases in which actions are based on decisions of national competition authorities means that knowledge triggering the limitation period can only be assumed once these decisions have become final (Kersting, Wuw 2024, 455, 461 et seq.). The Advocate General’s analysis is extremely thorough. She focuses on three criteria which, in her view, all speak in favour of assuming knowledge only once a decision is final: sufficient information for the claimant, also with regard to the cost risk, which requires that the claimant can rely on a decision that is capable of producing specific legal effects (Opinion (C-21/24) at [60 et seqq.]); presumption of legality of the relevant decision (Opinion (C-21/24) at [68 et seqq.]); probative value before national courts (Opinion (C-21/24) at [ 85 et seqq.]).

The Advocate General is thus right to oppose the Commission’s view that it is possible under European law for the limitation period to begin to run when the decision of the national competition authority is issued and before it becomes final (Opinion (C-21/24) at [79]). It considers this possibility to be a violation of the principle of effectiveness because – especially in the main proceedings – there is a risk that the limitation period will expire before a final decision has been made, so that the injured parties cannot base their action on a final decision (Opinion (C-21/24) at [81 et seq.]). She correctly argues against the Commission and invites the court to “adopt an approach which is inspired by the spirit of the judgment in Heureka, but – contrary to the Commission’s approach – not one that would simply ‘copy and paste’ that approach in the present case“ (Opinion (C-21/24) at [90]).

IV. Applicability of the Cartel Damages Directive

With regard to the applicability of the Cartel Damages Directive (2014/104/EU, ‘CDD’), the Advocate General’s statements are not precise in every respect. As a starting point, she argues that the CDD is not applicable because the infringement ended before the expiry of the transposition period of the Directive and a one-year limitation period had already begun with the publication of the decision of the national competition authority (Opinion (C-21/24) at [19 et seq.]). However, this would only be correct if the limitation period had actually expired under the previous Spanish law. In this respect, according to the case law of the ECJ in Volvo and Heureka, it is necessary to examine whether Spanish law complies with the primary law principle of effectiveness and, if necessary, to adapt it by disregarding provisions contrary to European law (ECJ, 22 June 2022, C-267/20, ECLI:EU:C:2022:494 at [49], [76 et seq.], [105] – Volvo; ECJ, C-605/21, at [50], [82], [92 et seq.] – Heureka. Cf. Kersting, WuW 2024, 455, 456 et seq.).

If one correctly follows the Advocate General and allows the limitation period to begin to run only when court decisions confirming the decision of the national competition authority become final, the limitation period in the main proceedings would not yet have expired at the time of the expiry of the deadline for transposition of the CDD. This would have opened up the scope of application of the CDD. Ultimately, the Advocate General also appears to take this view (Opinion (C-21/24) at [81]).

If the scope of application of the CDD is thus opened, its Art. 10 para. 2 lit. a) requires knowledge of the ‘fact’ that the behaviour constitutes an infringement of competition law. This supports the Advocate General’s interpretation. A legal assessment, a legal opinion, only becomes a ‘fact’ once it has been definitively established by an authority or court with binding effect (for a detailed analysis see Kersting, WuW 2024, 455, 459).

Admittedly, the ECJ is more generous in this respect with regard to Commission decisions and considers it sufficient that these are binding (ECJ, C-605/21, at [72 et seqq.] – Heureka). Also against the background of the Advocate General’s argumentation, this is inconsistent. Despite the binding effect, there is still a risk for claimants that the Commission decision will be annulled, their action will therefore fail and they will have to bear the costs. However, the earlier knowledge and thus the earlier commencement of the limitation period already with the binding effect and not only when Commission decisions become final is harmless for the claimants because the limitation period is in any case suspended immediately upon its commencement according to Art. 10(4) sentence 2 CDD (for a detailed analysis see Kersting, WuW 2024, 455, 461).

V. Opinion limited to follow-on-situations

The Advocate General expressly limits her opinion to follow-on actions. Only in these situations does the question of the relationship between the decision of a competent competition authority and the commencement of the limitation period arise (Opinion (C-21/24) at [48]). In this respect, two aspects are noteworthy.

On the one hand, the question arises as to what exactly distinguishes a stand-alone situation from a follow-on situation. Firstly, it should be noted that every situation is initially a stand-alone situation until a decision is issued (cf. Kersting, WuW 2024, 455, 460). The distinguishing feature is therefore the existence of a decision by a competition authority. This is also the view of the Advocate General (Opinion (C-21/24) at [46 et seq.]). However, it is unclear whether the decision must be binding or final. Do we already have a follow-on situation if the decision could possibly be overturned? The Advocate General does not explicitly comment on this. But it becomes clear that the injured parties in a follow-on situation ‘rely’ on an existing decision (Opinion (C-21/24) at [47]). However, such reliance is only possible if the decision is at least binding. This means that a follow-on situation exists in the case of Commission decisions when they are adopted and in the case of decisions by national competition authorities when they become final (and thus binding).

On the other hand, limiting the opinion to follow-on-situations means that the Advocate General does not make any statements on stand-alone situations. This is consistent, but regrettable. The result is that the follow-on situation is framed without taking into account what conclusions this allows or suggests for stand-alone situations. This is particularly unfortunate because, before a decision is issued, every situation is a stand-alone situation – no matter whether a decision is adopted later or not. Therefore, the legal and factual assessment of this period, the existence of knowledge during this period, cannot be changed by the subsequent adoption of a decision. Against this background, statements on the follow-on situation, which concern the period before the decision was issued, inevitably have an impact on the stand-alone situation, which concerns precisely the same period. If one applies the ECJ’s statement from Heureka, according to which knowledge cannot generally be assumed before the decision is issued (ECJ, C-605/21, at [66 et seqq.] – Heureka), to the stand-alone situations, knowledge can in stand-alone-situations probably only be assumed in the rarest of cases (regarding Heureka see Kersting, WuW 2024, 455, 460.).

VI. Further observations

The Advocate General’s Opinion contains various other statements that give rise to further observations. Some of these will be briefly addressed here.

1. Claiming cartel damages

Claims for competition law damages arise as soon as an infringement of competition law results in damage. These can then be asserted directly and independently of investigations and decisions by competition authorities (Opinion (C-21/24) at [46]). In particular, it is not necessary to wait until the development of the damage has come to an end and an overall damage can be determined. Each claim for each item of damage can be asserted separately. This also corresponds to the fact that the ECJ considers the individual limitation of claims for damages arising from each transaction to be permissible and therefore possible (ECJ, C-605/21, at [36], [42], [44], [81], [89], [94] – Heureka).

2. Art. 101 TFEU as a right, not an obligation

Due to the first question referred, the Advocate General also feels compelled to emphasise the self-evident fact that Art. 101 TFEU only grants a right (to compensation). However, it does not oblige the injured parties to invoke it and claim damages (Opinion (C-21/24) at [29]).

3. Provisions

A particular peculiarity is the information contained in footnote 61 of the opinion that cartelists in Spain do not create provisions in their balance sheets for possible fine liabilities as long as the decision imposing the fine has not yet become final (Opinion (C-21/24) at [footnote 61]). It seems strange when defendants argue that the claimant has sufficient knowledge to bring an action (which would trigger the statute of limitations), but are themselves of the opinion that they themselves lack sufficient knowledge for the creation of a provision. The compatibility of this approach with Art. 12 para. 12 of the Accounting Directive 2013/34/EU appears more than doubtful.

4. The undertaking as claimant

Finally, the statements in the introduction are noteworthy, in which the Advocate General ascribes rights from Art. 101, 102 TFEU to the undertaking (Opinion (C-21/24) at [32]) and links this to the any-person-case law (Opinion (C-21/24) at [33]). In doing so, she refers to a decision of the ECJ, in which the ECJ indeed formulated it as follows: “It must also be noted that any undertaking which considers that it has suffered damage as a result of restrictive practices may rely before the national courts, particularly where the Commission decides not to act on a complaint, on the rights conferred on it by Article 85(1) and Article 86 of the Treaty, which produce direct effect in relations between individuals […].” (ECJ, 18 March 1997, C-282/95 P, ECLI:EU:C:1997:159, para 39 – Guérin automobiles).

This shows that the assumption that an undertaking as such (and not just its constituent parts, e.g. companies with legal personality) could also be entitled to claim damages is by no means far-fetched. It is therefore to be hoped that the ECJ’s decisions in MOL (ECJ, 4 July 2024, C-425/22, ECLI:EU:C:2024:578) and Volvo Transsaqui (ECJ, 11 July 2024, C-632/22, ECLI:EU:C:2024:601), which could be misunderstood as a rejection of this idea, are not the last word (for a detailed analysis see Kersting, 46 E.C.L.R. 62; Kersting/Otto, [2025] 18 G.C.L.R. 1). As the case of the BGH in Matratzenpreisbrecher shows, situations are conceivable in which it becomes very important to find that the undertaking as such is able to claim damages (German Federal Supreme Court, decision of 12 September 2023, KZR 39/21, NZKart 2023, 675 – Matratzenpreisbrecher. Cf. Kersting, [2024] 17 G.C.L.R. 91). From the point of view of effectiveness, this may be particularly necessary in order to exclude the passing-on-defence within the group (see Regional Court of Frankfurt a.M., judgement of 10 August 2018, 2-03 O 239/16, NZKart 2018, 490; Regional Court of Stuttgart, judgement of 14 December 2018, 30 O 26/17, WuW 2019, 110, 112. For a detailed analysis see Kersting, (2020) 13 G.C.L.R. 47, 56 et seq.; Kersting, [2024] 17 G.C.L.R. 91, 93 et seq.). A defendant could therefore not argue against the claimant that the damage was passed on within the claimant’s group.

VII. Summary

Overall, AG Medina’s opinion is convincing and the ECJ should follow it. It is to be hoped, though, that the ECJ’ answer will be clearer. The answer should be formulated as a negative: ‘European primary law precludes a provision of national law according to which knowledge triggering the limitation period can be assumed in follow-on-situations, in which the European Commission is not involved, without a final decision by the national competition authority’. Hopefully, the ECJ will also take an obiter look at the stand-alone-situation.

Professor Dr Christian Kersting, LL.M. (Yale) holds a chair at Heinrich Heine University Düsseldorf and is the director of the Institute for Competition Law.