{"id":1881,"date":"2019-02-12T16:38:40","date_gmt":"2019-02-12T15:38:40","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=1881"},"modified":"2019-02-15T10:01:59","modified_gmt":"2019-02-15T09:01:59","slug":"skanska-industrial-ag-wahl","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2019\/02\/12\/skanska-industrial-ag-wahl\/","title":{"rendered":"Skanska Industrial \u2013 Opinion of Advocate General Wahl"},"content":{"rendered":"\n

The Skanska case is a much anticipated ECJ case on damages. The question of this case is who is liable \u2013 or put differently: What is an undertaking in the meaning of Art. 101 TFEU? And is TFEU applicable anyway? Advocate General Nils Wahl has spoken and J\u00f6rn Kramer reviews his opinion. <\/em><\/p>\n\n\n\n

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Dieser Text ist auch auf Deutsch verf\u00fcgbar. Klicken Sie dazu einfach oben rechts auf die Flagge.<\/em> <\/p><\/blockquote>\n\n\n\n

Finishing his term as Advocate General, Nils Wahl delivered his now last \u2013 and highly anticipated \u2013 Opinion in the course of the preliminary ruling requested by the Finnish Supreme Court (Korkein Oikeus) that has already been discussed last year<\/a> on D\u2019Kart. And he decided to make it worth our while.<\/p>\n\n\n\n

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Revision: The Skanska case in a nutshell <\/strong><\/h2>\n\n\n\n

In the case presented to the ECJ,\nthe question arose as to whether the principle of economic continuity \u2013 known\nfrom public enforcement of EU competition law \u2013 must also be applied within the\ncontext of private enforcement across Member States. To answer this question,\nthe Korkein Oikeus specifically presented three intrinsically linked questions\nthat can essentially be summarised as follows:<\/p>\n\n\n\n

(1) Are the parties that are liable for the damage caused by an infringement against Art.\u00a0101 TFEU determined by applying Art.\u00a0101 TFEU directly or by the application of national law? <\/p>\n\n\n\n

(2) If the liable parties are determined by direct reference to Art.\u00a0101 TFEU, are the concept of \u2018undertaking\u2019 as well as the principles of economic continuity and the economic unit to be applied?<\/p>\n\n\n\n

(3) If the liable parties are determined on the basis of national law, does the requirement of effectiveness preclude an interpretation of national law that makes obtaining compensation practically impossible or makes liability subject to an unlawfully or artificially implemented acquisition and dissolution of the company involved in a cartel?<\/p>\n\n\n\n

From the questions submitted, it\nbecomes obvious that, although revolving around the question of the principle\nof economic continuity, the significance of the coming ECJ decision will most\nlikely not be limited to its implications in this regard, but will rather\nextend to the very concept of \u2018undertaking\u2019 and the concept of the economic\nunit as well. <\/p>\n\n\n\n

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The applicable law <\/strong><\/h2>\n\n\n\n
\"\"<\/figure>\n\n\n\n

Acknowledging this, AG Nils Wahl<\/a> starts with a comprehensive analysis of the system of private enforcement of EU competition law, putting an emphasis on deterrence as the central objective of private enforcement. Analysing the ECJ\u2019s decision in Kone<\/em> (Judgment of 5 June 2014, Case C-557\/12, ECLI:EU:C:2014:1317<\/a>), he comes to the conclusion that, regarding the first question, one needs to distinguish between \u2018detailed rules governing the exercise of the right to claim compensation<\/em>\u2019 on the one hand and \u2018constitutive conditions<\/em>\u2019 on the other hand. According to his analysis of the case law, only the modalities of a claim are governed by the classic principle of equivalence and effectiveness while the constitutive conditions<\/em> of a claim are subject to (direct) application of EU law to ensure the \u2018full effectiveness\u2019 of the provision at hand (being Art.\u00a0101 TFEU in this case).<\/p>\n\n\n\n

Subscribing to this viewpoint, it would\nbe necessary to assess if the determination of the persons liable is a \u2018constitutive condition<\/em>\u2019 of liability. AG\nWahl answers this in the affirmative. He reasons that the very existence of the\nright to claim compensation presupposes that there is a person liable for an\ninfringement of competition law, thereby constituting a question of fundamental\nimportance that affects the very existence of the right to claim compensation. As\na result, the person liable for damage claims would have to be determined by\n(direct) reference to Art. 101 TFEU.<\/p>\n\n\n\n

Any other solution would bear the\n\u2018obvious risk\u2019 of undertakings being treated differently across Member States,\ncreating an incentive for forum shopping and interfering with one of the\nfundamental objectives of competition law: creating a \u2018level playing field\u2019\nacross Europe.<\/p>\n\n\n\n

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The principle of economic continuity<\/strong><\/h2>\n\n\n\n

Consequently, the principle of\neconomic continuity, as an expression of the broad definition of an \u2018undertaking\u2019\nin competition law, would have to be applied in determining the persons liable\nas well. Putting the deterrent effect of private enforcement in focus, Wahl argues\nthat the arguments that have been put forward to justify the recourse to the\nbroad concept of \u2018undertaking\u2019 in the context of public enforcement of\ncompetition law are valid in the context of claims for compensation just as\nwell. In this regard, public and private enforcement would have to be\nconsidered as \u2018complementary and constitute parts of a whole\u2019, so that a differing\ninterpretation of \u2018undertaking\u2019 between those two pillars of competition law\nenforcement would be nothing less than \u2018untenable\u2019.<\/p>\n\n\n\n

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First thoughts<\/strong><\/h2>\n\n\n\n

The Advocate General\u2019s Opinion\nconfirms the broad scope and importance of the proceeding that was put before\nthe ECJ. Even though the Finnish case is limited to the question of economic\ncontinuity, the ECJ will probably have the opportunity to decide on the\nimplementation of the overarching public enforcement concept of the\n\u2018undertaking\u2019 in private enforcement.<\/p>\n\n\n\n

Even though the ultimate outcome of Wahl\u2019s Opinion (i.e. the application of the principle of economic continuity in private enforcement) doesn\u2019t really come as a surprise, the Advocate General’s reasoning is indeed remarkable. First of all, this is because of the striking emphasis Wahl puts on deterrence as the main objective of private actions for antitrust damages. In this regard he even states that \u2018the compensatory function of an action for damages [\u2026] remains [\u2026] subordinate to that of its deterrent function.\u2019 In contrast, the Damages Directive (2014\/104\/EU<\/a>) \u2013 although not applicable to this case \u2013 rather seems to confirm that the primary objective of private enforcement rather remains (full) compensation by explicitly restricting overcompensation by means of multiple or punitive damages.<\/p>\n\n\n\n

Moreover, it is somewhat surprising\nthat the Advocate General reaches his conclusion by direct application of Art. 101\nTFEU in the context of private actions for damages that are instigated before\nnational courts. Should the ECJ subscribe to that viewpoint, this would most\ncertainly have significant implications with respect to damage claims far\nbeyond the principle of economic continuity. <\/p>\n\n\n\n

However, the demarcation between the\n\u2018classic test of equivalence and\neffectiveness<\/em>\u2019 and the \u2018full\neffectiveness of Art. 101 TFEU<\/em>\u2019 appears somewhat unpersuasive. Other\nthan suggested by Wahl, the ECJ in Kone <\/em>did\nnot actually deviate from its path taken in previous decisions: The court in\nthe end rather resorted to the \u2018classic\ntest of equivalence and effectiveness<\/em>\u2019 which was merely specified by the \u2018full effectiveness<\/em>\u2019 of Art. 101\nTFEU in the case at hand. Accordingly, it does not appear that the ECJ actually\nintended to create a distinct standard of review to stipulate the direct\napplication of Art. 101 TFEU with regard to damage claims governed by\nnational law.\n\nNevertheless, the Advocate General is right in\nhis assertion that uniformity across Member States is best achieved by direct\napplication of EU Law. However, it remains debatable if this warrants direct\nrecourse to Art. 101 TFEU in the realm of damage claims governed by\ndomestic law. Moreover, the distinction between the \u201cfull effectiveness Art. 101\nTFEU\u201d and the \u201cclassic test of equivalence and effectiveness\u201d remains somewhat\nvague. It remains to be seen to what extent the ECJ will actually follow the\nAttorney General\u2019s Opinion. In any case, the path seems cleared for another\nsignificant step towards the expansion of private enforcement in competition\nlaw.\n\n\n\n<\/p>\n","protected":false},"excerpt":{"rendered":"

The Skanska case is a much anticipated ECJ case on damages. The question of this case is who is liable \u2013 or put differently: What is an undertaking in the meaning of Art. 101 TFEU? And is TFEU applicable anyway? Advocate General Nils Wahl has spoken and J\u00f6rn Kramer reviews his opinion. Dieser Text ist auch auf Deutsch verf\u00fcgbar. Klicken Sie dazu einfach oben rechts auf die Flagge. Finishing his term as Advocate General, Nils Wahl delivered his now last…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":9,"featured_media":1886,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[49,171,104,194,188],"class_list":["post-1881","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-allgemein","tag-eugh","tag-nils-wahl","tag-schadensersatz","tag-unternehmensbegriff","tag-vorabentscheidungsverfahren"],"translation":{"provider":"WPGlobus","version":"3.0.0","language":"en","enabled_languages":["de","en"],"languages":{"de":{"title":true,"content":true,"excerpt":false},"en":{"title":true,"content":true,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/1881","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/users\/9"}],"replies":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/comments?post=1881"}],"version-history":[{"count":13,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/1881\/revisions"}],"predecessor-version":[{"id":1929,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/1881\/revisions\/1929"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media\/1886"}],"wp:attachment":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media?parent=1881"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/categories?post=1881"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/tags?post=1881"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}