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Historic Competition law judgement handed down by the European Court of Justice

  • Finland

    14-03-2019

    Following ECJ's Advocate General Nils Wahl’s opinion on March 14, 2019, the European Court of Justice today published its judgement (preliminary ruling) in the matter of City of Vantaa vs. Skanska Industrial Solutions Oy, NCC Industry Oy and Asfaltmix Oy (C-724/17). The preliminary ruling addressed to ECJ by the Finnish Supreme Court concerns one of the most difficult and fundamental questions of whether the principle of economic continuity is to be applied to the private enforcement of competition rules. The question has, until today, remained unresolved in both European competition law and national legislation. It is worth noting that due to the complexity of the question, the European Parliament was not able to decide on the applicability of the principle when creating 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 in the Directive 2014/104/EU. Nor was the Finnish legislator able to decide on the potential applicability when implementing the Directive nationally. The Act on Antitrust Damages Actions (1077/2016) left the applicability of the principle to be determined by legal praxis.

    Well, here is the new legal praxis: the person liable for the damages should be identified in accordance with article 101 of TFEU and the principle of economic continuity shall indeed be applied to the private enforcement as it has been applied to the public enforcement of competition rules. Therefore, according to the European Court of Justice, the same entity to whom the fines have been addressed shall be liable for the damages as well. Following the principle of economic continuity, ECJ’s judgement means that despite restructuring or otherwise changing the corporate structure, liability for damages may be imposed on the entity that in economic terms equals the one that infringed the competition rules. Legal form can be ignored when identifying the liable person and attributing liability. This also means that risks related to competition law infringements and thereto related consequences will be determined within corporate acquisitions to an increasing extent.

    It has been an honor to participate in this landmark case in the ECJ and fight for over 10 years for the outcome now confirmed by the ECJ. The applicability of the principle of economic continuity considerably improves the possibilities of injured parties to claim for damages caused by competition restrictions and strengthens the private enforcement of competition rules. Special thanks to all the wonderful colleagues who have been working on the case, especially to our DR Partner Niina Mickelsson and Toni Kalliokoski, Attorney-at-Law at Dittmar & Indrenius.

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