On 10 November 2022, the European Court of Justice (CJEU) issued a preliminary ruling[1] on the interpretation of the disclosure obligation under the EU directive that harmonised national rules governing actions for damages for breaches of competition law in EU member states and the UK (the Damages Directive).[2]
On November 10, 2022, in a judgment on a request for a preliminary ruling on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and the scope of its rules on evidence production, the Court of Justice confirmed that national courts could require defendants to disclose evidence that did not exist at the time of the court proceedings (“ex novo evidence”)— by compiling or classifying knowledge, information or data in their possession— rather than to merely produce documents that already exist.[1] In this instance, the applicants were seeking price data to quantify the artificial price increase caused by a cartel. The Court of Justice considered that the need to ensure the effective implementation of EU competition law could justify this interpretation, provided that national courts limited disclosure of ex novo evidence to necessary and proportionate requests. This ruling will increase the burden of follow-on litigation on companies and, in particular, the time and costs of carrying out disclosure.
On October 19, 2022, the Cour de cassation dismissed[1] an appeal brought by Carrefour against two decisions of the Paris Court of Appeals, which rejected its follow-on damage claim against Johnson & Johnson Santé Beauté France (“Johnson & Johnson”) in relation to its participation to the home and personal care cartel.[2]
On June 16, 2022, the Paris Court of Appeals (the “Court”) ruled that “decisions to protect the confidentiality of business secrets taken during the course of the investigation, which have not been challenged pursuant to Article R. 463-15 of the French Commercial Code, continue to bind the College when adopting and drafting the decision on the merits, otherwise such decisions would be deprived of any effectiveness” (the “Ruling”).[1]
On April 26, 2022, the Italian Supreme Court confirmed a judgment of the Milan Court of Appeal, which had upheld the damages claim brought by Teleunit S.p.A. (“Teleunit”) against Telecom Italia S.p.A. (“Tim”)[1].
On April 7, 2022, Advocate General Szpunar delivered his opinion on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and on the scope of its rules on evidence production.[1] The Advocate General called on the Court of Justice to allow national courts to require defendants to disclose evidence of a type that would require the defendant to compile or classify information rather than merely produce existing material.
The Regional Administrative Court of Lazio, Italy (the “TAR Lazio”), annulled a decision by which in 2020 the Italian Competition Authority (the “ICA”) had imposed a fine on CTS Eventim-TicketOne Group (“TicketOne”) for allegedly abusing its dominant position in the Italian market for the sale of tickets for pop and rock music concerts.[1]
On March 25, 2022, the French Conseil constitutionnel[1] held that the provisions of Article L.470-2, paragraph VII of the French Commercial Code, which provide for the cumulative enforcement of penalties imposed on the same person for multiple breaches regarding restrictive trade practices, are in compliance with the French Constitution.
The Competition Appeal Tribunal (CAT) has granted a claim for damages by Achilles Information Limited (“Achilles”) against Network Rail Infrastructure Limited (“Network Rail”).[1] The Judgment is the CAT’s first damages award arising from a standalone claim since 2016,[2] and follows the CAT’s earlier finding that Network Rail had breached Chapter 1 and Chapter 2 of the Competition Act 1998 (the“Act”).[3]
In a ruling dated March 9, 2022, the Paris Court of Appeals partially quashed a 2019 judgment in which the Paris Commercial Court had held that Schneider Electric France was in a dominant position in certain markets for the supply of spare parts.