In May 2019, we reported about an important judgment of the Amsterdam District Court in the cartel damages action of Stichting Cartel Compensation (SCC) in respect of the Air Cargo cartel. That judgment (ECLI:NL:RBAMS:2019:3394) concerned the question whether the District Court, as national court, was authorised to privately enforce the European prohibition on cartels in respect of flights from before certain dates.

The District Court itself answered this question in the affirmative. Nonetheless, the Court decided to make a preliminary reference to the Court of Justice of the European Union (ECLI:NL:RBAMS:2019:9966).

In his opinion, which was published today, Advocate General Bobek adopts SCC’s reasoning: the prohibition of article 101 TFEU sets a clear and enforceable legal obligation: ‘thou shalt not cartel’. It is that self-executing right that individuals derive directly from the TFEU, and which national courts must safeguard, said Advocate General Bobek.

As advocated by SCC, he distinguishes between the public and private enforcement of EU competition rules. The case-law of the Court of Justice relied upon by the cartel members and the European Commission related to the first and cannot affect the latter, according to Advocate General Bobek. Revisiting these partially obsolete judgments is an exercise in legal archaeology, reaching as far back as 1962, he said.

Advocate General Bobek is also clear about the bigger picture: national courts have a duty to protect individual rights derived from directly effective provisions of EU law regardless of whether a public authority investigated or prosecuted the relevant behaviour (or for whatever reason discontinued the administrative proceedings or limited them in scope).

In the particular context of competition law, this means that undertakings breaking the rules of fair competition cannot hide behind a lack of administrative enforcement or a limited scope of such enforcement, and must expect that damages claims will be brought directly before the national courts by the parties they have injured, said Advocate General Bobek.

The lawyers of Brande & Verheij LLP, who represent the claimants in this case, believe that there is a real prospect that the Court of Justice will also adopt SCC’s reasoning and will confirm that the Amsterdam District Court is indeed authorised to privately enforce the European prohibition on cartels in respect of flights from before certain dates.

The procedure is pending before the Court of Justice under case number C-819/19 (Stichting Cartel Compensation and Others).

For more information, please contact Theodoor Verheij.