Case C‑819/19
Stichting Cartel Compensation
and
Equilib Netherlands BV
v
Koninklijke Luchtvaart Maatschappij NV and Others
(Request for a preliminary ruling from the rechtbank (Amsterdam))
Judgment of the Court (Second Chamber), 11November 2021
(Reference for a preliminary ruling– Articles81, 84 and 85 EC– Article53 of the EEA Agreement– Agreements, decisions and concerted practices– Conduct of undertakings in the context of air transport between the European Economic Area (EEA) and third countries that occurred under Articles84 and 85 EC– Claim for compensation for damage suffered– Jurisdiction of national courts to apply Article81 EC and Article53 of the EEA Agreement)
1.Competition– Transport– Competition rules– Air transport– Council regulations on the implementation of EU competition rules– Scope– Air transport between EU airports and those in third countries– Inclusion as from May 2004– Consequence– Applicability of transitional implementation arrangements prior to that date
(Arts81, 83, 84 and 85 EC; Art.101 TFEU; Council Regulations Nos17, 141, 3975/87, 3976/87, 1/2003 and 411/2004)
(see paragraphs36-42)
2.Competition– Transport– Competition rules– Air transport– Air transport agreement concluded between the European Community and the Swiss Confederation– Swiss airports regarded as EU airports
(Art.81 EC; Agreement between the European Community and the Swiss Confederation on Air Transport, Art.1(2), and annex)
(see paragraph43)
3.Agreements, decisions and concerted practices– Prohibition– Direct effect– Right of individuals to claim compensation for harm suffered– Procedures for exercising a right– Infringements committed in the air transport sector– Infringements committed before the entry into force of the regulations implementing EU competition rules in that sector– Infringements not covered by a decision of the competent national authorities or a Commission decision– Jurisdiction of the national courts to apply Article81 EC– Limits– Observance of the principle of legal certainty– Observance of the decision-making or legislative powers of the EU institutions– Scope
(Arts81, 83, 84 and 85 EC; Art.101(1) TFEU; Council Regulation No1/2003, Arts6 and 16(1))
(see paragraphs45-67, operative part)
4.International agreements– Agreement establishing the European Economic Area– Competition rules– Prohibition of cartels and restrictive trade practices– Legal scope identical to that of EU provisions
(EEA Agreement, Art.53)
(see paragraphs68-74, operative part)
Résumé
By decision of 17March 2017, the European Commission found that, by coordinating various elements of their pricing relating to airfreight services, 19 airlines had infringed Article101 TFEU and/or Article53 of the Agreement on the European Economic Area (‘the EEA Agreement’),(1) as well as Article8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the Swiss Agreement’),(2) which prohibit cartels and trade practices that restrict competition.(3)
Taking the view that the applicable rules did not allow it to penalise those airlines’ practices from their inception on routes which were not confined to the European Economic Area (EEA), the Commission set the starting date of the infringement period at different times depending on the routes concerned. While the infringement period used for routes between airports within the EEA ranged from December 1999 to February 2006, the starting date of the infringement period was set at 1May 2004 for routes between airports within the European Union and airports outside the EEA. For routes between airports in countries that are contracting parties to the EEA Agreement but are not Member States and third countries, that date was set at 19May 2005, and for routes between EU airports and airports in Switzerland it was set at 1June 2002.
Following the adoption of that decision, Stichting Cartel Compensation (‘SCC’) and Equilib Netherlands, two legal persons specialising in the recovery of compensation for damage resulting from infringements of competition law, brought several actions before the rechtbank (District Court, Amsterdam, Netherlands) seeking, first, a declaration that the 19 airlines, by coordinating, between 1999 and 2006, their pricing relating to airfreight services, acted unlawfully with regard to the shippers that purchased those services and, secondly, an order requiring those airlines to pay compensation for the harm which those shippers suffered as a result of that conduct.
However, the rechtbank (District Court, Amsterdam), has doubts as to whether, in a dispute governed by private law, it has jurisdiction to apply Article81 EC (now Article101 TFEU) or Article53 of the EEA Agreement to the conduct at issue of the 19 airlines on routes not confined to the EEA, in so far as that conduct took place before the starting dates of the infringement periods set in the Commission decision. It therefore decided to refer that question to the Court of Justice for a preliminary ruling.
Assessment of the Court
As regards the anti-competitive practices of airlines on routes between airports within the European Union and those in third countries, the Court notes, first of all, that, as regards air transport on those routes, the provisions adopted by the Council pursuant to Article83(1) EC (now Article103(1) TFEU) with a view to organising the implementation of Article81 EC did not enter into force until 1May 2004. Consequently, only the arrangements provided for in Articles84 and 85 EC (now Articles104 and 105 TFEU), under which, in the absence of provisions adopted pursuant to Article83(1) EC, the (administrative) authorities of the Member States are responsible for implementing the principles contained in Article81 EC, are applicable to those services before that date. The same applies, moreover, in relation to the conduct of the airlines that took place between 1999 and the date of entry into force of the Swiss Agreement, that is to say 1June 2002, in so far as that conduct directly related to air transport services between airports in the European Union and those in Switzerland.
However, that finding entails neither that air transport services between airports in the European Union and those in third countries or in Switzerland were excluded from the application of Article81 EC until 1May 2004, in the case of third countries, or until 1June 2002, in the case of Switzerland, nor that national courts are precluded from applying that provision in the absence of a decision of the competent national authorities or a Commission decision finding an infringement before those dates
It is clear from the Court’s case-law that air transport has been subject to the general rules of the Treaties, including the rules on competition, since the entry into force of those Treaties.
The Court also recalls that Article81(1) EC produces direct legal effects in relations between individuals and directly creates rights for individuals which national courts must protect. Accordingly, national courts have jurisdiction to apply Article81 EC in particular in disputes governed by private law, this jurisdiction deriving from the direct effect of that article.
That jurisdiction is not affected by the application of Articles84 and 85 EC, since neither of those two provisions limits the application of Article81 EC by the national courts, in particular in disputes governed by private law.
Nevertheless, the exercise by national courts of their jurisdiction to apply Article81 EC in disputes governed by private law may be limited, inter alia, by the principle of legal certainty, in particular by the need to ensure that those courts and the entities responsible for the administrative implementation of EU competition rules do not adopt conflicting decisions, as well as by the need to preserve the decision-making or legislative powers of the EU institutions responsible for implementing those rules and to ensure that their acts have binding force.
Nonetheless, as regards the anti-competitive practices of airlines on routes between airports in the European Union and those in third countries or in Switzerland that occurred before the starting dates set by the Commission in its decision of 17March 2017 for the infringement periods, there is no risk that a national court’s decision in a dispute governed by private law might conflict with an administrative decision implementing EU competition rules or interfere with the decision-making or legislative powers of the EU institutions.
As regards, lastly, the application of Article53 of the EEA Agreement to the conduct of the 19 airlines in question, the Court notes that that agreement, which is intended, inter alia, to extend the internal market established within the European Union to the States of the European Free Trade Association, forms an integral part of EU law. It is for the Court, in that context, to ensure that the rules of the EEA Agreement which are identical in substance to those of the FEU Treaty are interpreted uniformly within the Member States.
It follows that, since Article53 of the EEA Agreement is in essence identical to Article81 EC, the former must be interpreted in the same way as the latter.
Accordingly, in the light of all of the foregoing, the Court confirms that a national court, such as the rechtbank (Amsterdam), has jurisdiction, in a dispute governed by private law, to apply Article81 EC and Article53 of the EEA Agreement to the anti-competitive practices of airlines on routes between airports in the European Union and those in third countries or in Switzerland that occurred before the dates on which, respectively, the provisions adopted by the Council pursuant to Article83(1) EC, which became applicable to the first routes, and the Swiss Agreement entered into force.
1Agreement on the European Economic Area (OJ 1994 L1, p.3), Article1(1).
2Agreement between the European Community and the Swiss Confederation on Air Transport, signed on 21June 1999 in Luxembourg and approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council and of the Commission, as regards the Agreement on Scientific and Technological Cooperation, of 4April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L114, p.1).
3Decision C(2017) 1742 final of 17March 2017 relating to a proceeding under Article101 TFEU, Article53 of the EEA Agreement and Article8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258– Airfreight).