Again, the breach! Setting the start date for limitation periods in competition law damages claims. A comment on the opinion of AG Medina in the Nissan Iberia Case
Limitation period is a gating factor that determines whether a claim can be brought forward. When arguing and counter-arguing if a claim for damages under competition law is time-barred the parties focus on the moment that the period began running (i.e. the dies a quo) rather than the duration of the period or whether it was correctly interrupted or suspended.
This is precisely the topic that Advocate General Medina (“AG Medina“) tackled on her Opinion delivered on 3 April 2025 in the Nissan Iberia request for a preliminary ruling submitted to the Court of Justice of the European Union (“ECJ“) by the Commercial Court No 1 of Zaragoza (Juzgado de lo Mercantil n.o 1 de Zaragoza) (case C-21/24). This is the fifth request for a preliminary ruling concerning limitation periods in Competition law damages claims–the previous ones where replied in the rulings in Cogeco (case C-637/17), Volvo & DAF (case C-267/20), and Heureka (case C-605/21 with a note by Mariya Serafimova), and the order in Deutsche Bank (joined cases C-198 and 199/22).
Background
On 23 July 2015, the Comision Nacional de los Mercados y la Competencia (the “CNMC” – the Spanish Competition Authority) adopted a decision in case S/0482/13 Fabricantes de Automoviles. The CNMC found that 21 car original equipment manufacturers (including Nissan Iberia, S.A.–“Nissan“) and two consultancy firms shared confidential and commercially sensitive information, and infringed articles 1 of Ley 15/2007, de 7 de julio, de Defensa de la Competencia (“LDC“, the Spanish competition law act), and 101 of the Treaty on the Functioning of the European Union (“TFEU“).
The full text was published on the CNMC’s website on 15 September 2015. The CNMC issued a press statement in July 2015, which included the conduct, names of the violators, the market affected and the overall duration of the infringement. Concerning Nissan, the CNMC’s decision was confirmed by the National High Court (Audiencia Nacional) in December 2019 and the Supreme Court (Tribunal Supremo) in June 2021.
The claimant filed a damages claim against Nissan in March 2023 arguing that they paid an overcharge when acquiring a Nissan car allegedly affected by the anticompetitive conduct (see note by Julia Suderow on this litigation). The claimant relied on the CNMC’s decision, considered that the dies a quo had to be set on the day of the Supreme Court’s decision in 2021 and the five-year limitation period of article 74 LDC–which transposes article 10 of Directive 2014/104–was applicable.
Nissan counter-argued that the claim was time-barred, because the one-year limitation period of article 1968 of the Codigo Civil (Spanish Civil Code) applied to this case and set the dies a quo as of 15 September 2015. According to Nissan, with the CNMC’s decision full text, the press release and the media coverage, the claimant was aware (or could have reasonably been aware) of this information, and could have filed the claim (or, at least, started to interrupt the limitation period) without waiting for the decision to be final.
According to the application, the referring court had already issued several judgments concluding that the claim is time-barred because (a) more than 40 claims were filed in 2019; and (b) the main Spanish consumer association (the Organizacion de Consumidores y Usuarios) filed on behalf of its members judicial conciliation requests in 2016 and 2017. However, the position of the court of appeal of Zaragoza (Audiencia Provincial de Zaragoza) was that the dies a quo was set on the day the decision was final following the Supreme Court’s judgment.
The questions
The referring court asked the ECJ the following questions:
- Is there a legal basis under EU law to distinguish between the right, and the obligation, to bring a damages claim for an infringement of competition law?
- To file such damages claim, should the claimant wait until the national competition authority’s decision is final (after the judicial review) or could the limitation period start running if the decision is published with the information concerning the infringement (the conduct, the duration and the products affected) and the identity of the infringers?
- If national competition authority’s decisions are only published in the authority’s website, should this publication be treated as an equivalent to the publication of a European Commission’s (“EU“) decision in the Official Journal of the EU (“OJ“) for the purposes of establishing the dies a quo of the limitation period?
The Opinion of AG Medina: main findings
AG Medina begins appraising the applicability ratione temporis of Directive 2014/104. The Opinion of AG Medina: main findings
AG Medina begins by assessing the applicability ratione temporis of Directive 2014/104. 19-22). After concluding the first question is hypothetical (paras. After concluding that the first question was hypothetical (paras. AG Medina differentiates between stand alone and follow-on claims, where there is no prior infringement decision from a competition authority, and follow-on claims, where a previous decision has been relied on. In follow-on actions, the injured party is not required to prove the infringement as the decision by the competition authority provides all the evidence necessary (paras. 44-47). According to AG Medina the relationship between the decisions of the competition authority, and the diesa quo of limitation period is critical in follow-on action (para. 48). Thus, she focuses the analysis on this group of claims.
Is the solution in the Heureka judgment directly transposable?
AG Medina recalls that the ECJ in Heureka concluded that the limitation period starts from the date of publication of the summary of the EC decision in the OJ, irrespective of whether the decision has become final, because of the presumption of legality of EC decisions and their binding effect on national courts (para. 56). AG Medina examines whether this ruling can be applied to Nissan’s case. She concludes it cannot be done because, under EU law, the decisions of national competition authorities do not have the same probative power as EC decisions. (para. 59 and 94).
Transposing Heureka to Nissan: information sufficient to bring a damages claim
According to AG Medina, if the CNMC’s decision has been subject to appeal, the facts and participation in the alleged infringement may be contested by the review court (para. 62). A. Medina argues, on this basis, that the injured party lacks the information necessary to file a claim while the judicial review of CNMC’s decisions is ongoing. 62) and that filing the claim at this time could have two negative effects. First, it may be necessary to suspend the damages claim proceedings, which is considered by the Opinion to be time-consuming and costly. Second,
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the claimant is at risk of losing the damages claim, if the judicial process results in a change in the scope of the infringement and paying judicial expenses (paras. Transposing Heureka into Nissan: Acts, documents and the presumption that they are legal The act of EU institutions is presumed to be lawful until it is annulled or withdrawn. 68). According to AG Medina however, under Spanish law the finding of a violation by the CNMC does not bind national courts until it becomes final. Until then, the finding merely serves as a indication of the infringement. 72). According to AG Medina’s interpretation of Spanish Law, CNMC’s decisions are automatically suspended when the addressee declares its intention to seek judicial reviews, but the suspension of private proceedings until judicial reviews conclude is not automatic. 76 y 83). Following the pro actione principles, AG Medina concludes, that the dies a quo must be established as soon as the CNMC’s decision becomes final (paras. 75 and 78). In her opinion, this provides legal certainty and ensures the effectiveness of subsequent damages claims (para.
Transposing Heureka into Nissan: Acts, documents and evidence with probative values before national courts
EU Law gives different probative values to EC and national competition authority decision based on the binding nature and primacy of EU laws. The EC’s decisions (ex. article 16(1), Regulation 1/2003
) have binding effect on national courts. National decisions only have probative value when they are final (ex. article 9(1), Directive 2014/104). 86-87). According to AG Medina, the differences “are substantial and impact the essence rights of the parties.” (para. 89). Similarly, AG Medina argues the publication of CNMC’s summary decision on its website is not equivalent to the publication of a summary in the OJ as it is not similar to a government gazette (para. The publication of the decision is not required for it to be valid or legally effective (para. 92).
Conclusion
AG Medina encourages the ECJ “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” (para. 90). She suggests that the ECJ answer the questions ruling the article 101 TFEU, and the principle effectiveness, do not preclude setting dies a quo in competition law damage claims when the CNMC decision becomes final, after, if appropriate, its confirmation through the review courts. (para. The Nissan case is crucial for damage claims in Spain where Directive 2014/104 does not apply ratione temporis. There are currently two lines of rulings on limitation periods. Those who argue the dies a quo should be set the day after the CNMC decision is published, and those who set it the day after the final review court judgement is published. The Heureka judgment set the balance in favour of the former, whereas AG Medina’s Opinion represents a change that may alter some courts’ line of reasoning.In my opinion, AG Medina’s Opinion is not flawless, and some misunderstandings are analysed below.
Firstly, AG Medina replies to a question different from the one referred to the ECJ. The referring court asks (in an unclear manner) the ECJ if a knowledge based dies a quo is in accordance with EU Law, or if, on the other hand, it should be based upon an objective element. When the decision becomes final. AG Medina confirms what is obvious, but she fails to reply what the Commercial Court No 1 of Zaragoza actually enquires.
Secondly, AG Medina argues that injured parties have two set of claims: stand-alone or follow-on claims. Under Directive 2014/104, and the previous national regimes that were applicable ratione temporaris, there is only one claim of damages arising from the anticompetitive behavior, regardless of the way the behaviour is proven. A proceeding before a competition agency does not make a follow-on claim a specific action. This is despite its evidentiary impact on the elements of the claims. In any damages claims arising out of competition law infringements the dies a quo must be determined in accordance with the requirements outlined in Heureka by the ECJ (para. Volvo & DAF, para. 61): When the claimant (or should be expected to know) all the information needed to bring a damage claim (subjective component) after the infringement is over (objective component). Therefore, in spite of having the chance to take profit of the competition authorities’ work, potential claimants only have one damages claim.
Thirdly, the ECJ recalled that limitation periods are more than just the dies a quo and the period itself. In assessing whether they are in compliance with the principle, it is important to consider the possibility of suspending or interrupting them according to national laws (Cogeco para. 53). In paragraph 51 of Volvo & DAF, the ECJ seemed to acknowledge that the one-year limitation period complied with the principle of effectiveness without appraising rules to interrupt it. In para. 51 of Volvo & DAF the ECJ appeared to acknowledge that the limitation period of one year complied to the principle of effective without evaluating the rules to interrupt it. I do not believe that the ECJ would have changed its conclusion in Volvo & DAF if it had taken into account the latter. In Spanish law, a simple email or letter with acknowledgement of receipt (which is neither costly nor time-consuming) is enough to interrupt the limitation period, and the clock will tick again from scratch.
Fourthly, the ECJ ruled in Volvo & DAF (para. 64) and Deutsche Bank (para. 44) that dies a quo may be set before publication of a summary in the OJ of the EC’s decision if the claimant possesses the information needed to bring a claim before that date, because the claimant, for example, is privy of the details of the case. The ECJ has accepted that dies a quo is dependent on the claimant having access to this information. Therefore, there is no reason to conclude that a limitation period cannot begin to run when the CNMC releases the text of infringement decisions shortly after their adoption, including all the relevant information about the infringement and the addressees. AG Medina proposes that the ECJ move from a knowledge based to a value-based probative criterion, paired with legal certainty if it is not a EC decision. In my opinion, the ECJ would have to justify such a change since it runs against the legal tradition of Member States where limitation periods start running upon knowledge.
Fifthly, AG Medina seems to have misunderstood Spanish law applicable to CNMC’s decisions and their judicial review. According to article 90(3), of Law 39/2015 of 1 October on the common administrative procedures of public authorities
(“
Law39/2015
“) infringement decisions will be enforced unless the addressee asks for the suspension at the review court. The review court can grant a suspension as a temporary measure, but is not required to. Article 39(1) of Law 39/2015 also states that the acts of public authorities, including CNMC’s decision, are enforceable and presumed to be valid. Thus, but for the binding effect, this provision mirrors article 16(1) of Regulation 1/2003.
Lastly, the publication of CNMC’s decision (like EC decisions) follows a legal mandate (article 69 LDC and article 23 of the Defence of Competition Regulation
). It is of the same informative value as the publication of a summary of EC decisions in the OJ. The publication of CNMC or EC decisions is not a prerequisite for their validity and effectiveness under EU or Spanish law. In her Opinion, AG Medina requests that the ECJ change its caselaw regarding limitation periods, and the criteria for setting the dies a quo in competition law damages claims, depending on the competition authorities that issue the decision (publication v. Finality). This is based upon a reading of Spanish Law that does not consider that the Spanish limitations periods are knowledge-based, and do not violate the principle of effectiveness; and that CNMC decisions are valid, despite not being covered under article 16 of Regulation 1/2003. Now, it is up to the ECJ to render a judgment either following AG Medina or addressing these misunderstandings.
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Disclaimer: The author is part of the team defending an addressee of the CNMC’s decision in case S/0482/13 Fabricantes de Automoviles (not Nissan Iberia). The views expressed by the author are not necessarily those held by Uria Menendez, or any of its clients. The author would like to thank his colleagues Patricia Vidal, Jokin Beltran De Lubiano and the editors of the Kluwer Competition Law Blog for their comments on an earlier version of this brief paper.
