On January 17, 2019, Advocate General Kokott issued an opinion[1] on the scope of application of the Private Damages Directive[2] (“Directive”) in the context of a preliminary ruling request from the Lisbon Commercial Court.
The Portuguese competition authority in 2013 found that Sport TV, Portugal’s main pay TV sports channel, had abused its dominant position under both Portuguese and EU competition law. Upon appeal, the Court of Competition, Regulation, and Supervision found in June 2014 that Sport TV’s conduct constituted an abuse of a dominant position pursuant to Portuguese law, but that EU competition law was not applicable to the case.
In 2015, i.e., before the deadline for Member States to transpose the Directive had lapsed, television cable company Cogeco filed a private damages claim against Sport TV for the amount of €11.5 million. The claim was filed before Portugal had implemented the Directive and even before Member States were obliged to transpose it.[3]
In its preliminary reference, the Lisbon Commercial Court asked, among other things, whether the Directive applies to the merits of the case even though the Court of Competition, Regulation, and Supervision found that EU law was not applicable to the case, and whether the claimant could rely on the Directive in a case where the facts occurred before the Directive was adopted and even before it had to be transposed into national law.
Advocate General Kokott noted that the underlying facts of the case arose before the adoption and entry into force of the Directive, and that Cogeco’s action for damages was brought at a time after the entry into force of the Directive, but before the expiry of its transposition period. According to Advocate General Kokott, the temporal scope of the Directive is limited in the sense that there is a general prohibition to apply substantive provisions retroactively. However, the Advocate General held that some of the Directive’s procedural provisions could apply to actions brought before national courts between the date of entry into force of the Directive and the lapse of the period prescribed for its transposition, even where the facts of the case arose prior to the entry into force of the Directive. As the relevant provisions of the Directive in the present case did not fall into this category, they could not be applied.
Advocate General Kokott concluded that where an action for damages under civil law relates to a situation outside the temporal scope of the Directive, there is no obligation to interpret national law in accordance with that Directive. The obligation to interpret national law in accordance with Article 102 of the TFEU, in so far as it is applicable, remains unaffected.
[1] Cogeco Communications (Case C-637/17), opinion of Advocate General Kokott, EU:C:2018:628,.
[2] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ 2014 L 349/1.
[3] The Directive entered into force in December 2014. Member States had two years from that date to implement it, i.e., until December 2016.