Relevant regulation in follow-on competitors instances. 3 Opinions of the AG on the Dutch Supreme courtroom. On Rome II ratione temporis for steady torts; on project; and on ‘markets affected’. – Cyber Tech

Three Opinions of Vlas AG on the Dutch Supreme Courtroom dated 5 April 2024 however printed in the present day focus on problems with relevant regulation in competitors follow-on instances. See additionally my earlier posts on Air Cargo and Palink. CJEU authority cited consists of Concurrence, Nintendo, Tibor Trans, CDC, flyLAL.

ECLI:NL:PHR:2024:561 is the Palink case within the Truck Cartel: Uzdaroji Akcine Bendrove “Palink” et al v CNH Industrial NV et al

ECLI:NL:PHR:2024:370 considerations the Air Cargo cartel: KLM et al v Stichting Cartel Compensation – SCC; and

ECLI:NL:PHR:2024:369 can be an Air Cargo case, ‘Equilib’: KLM et al v Equilib Netherlands B.V.

Within the Truck Cartel opinion which is a preliminary reference, the essence of the case is the impression of a single and steady infringement on the appliance of A6 Rome II. A primary subject is the date of software of Rome II: it applies (A31 juncto A32) to occasions giving rise to break which happen (the occasions, NOT the harm) after 11 January 2009. The cartel at subject ran between 1997 and 2011. (4.6) the appliance of Dutch residual lex causae guidelines for the pre 2009 interval and of the Rome II guidelines for the publish 2009 interval doesn’t serve Rome II’s quest for predictability. The fissure between pre and publish Rome II’s software ratione temporis within the case of a steady tort just isn’t solved by CJEU Homawoo as referenced ia in CJEU Nikiforidis. 

Vlas AG 4.8 cites Mankowski

The second remaining subject is whether or not the Rome II Regulation applies the place a steady tort was at stake, i.e. the place a multiplicity of occasions giving rise to the harm have occurred, some earlier than and a few after 11 January 2009. There’s a plethora of conceivable options: First, the final causal occasion issues. One would run into extreme hassle in figuring out which occasion is the final. Second, the primary causal occasion issues. Third, probably the most related causal occasion issues. Fourth, all causal occasions are handled as equal, and it disqualifies for the needs of making use of the Rome II Regulation that considered one of them occurred earlier than 11 January 2009. Fifth, all causal occasions are handled as equal, and it suffices for the appliance of the Rome II Regulation that considered one of them occurred on or after 11 January 2009.

If one is ready to undertake as a normal coverage that the Rome II Regulation and its uniform guidelines ought to be utilized to the widest potential extent, the fifth method should be most well-liked.

and Fitchen (4.10)

(…) accordingly, for a few years to return it could be that the relevant regulation in cross-border competitors regulation claims introduced after 11 January 2009 will nonetheless be wholly or partially ruled by pre-Rome II strategies of figuring out the relevant regulation. As such an consequence doesn’t seem to accord with the final coverage of accelerating authorized certainty within the context of cross-border claims, it’s value contemplating whether or not, within the circumstance that an infringement of competitors regulation is alleged to be ongoing each earlier than and after the temporal datum level of Rome II, it’s flawed to separate the ascertainment of the relevant regulation. Presumably the truth that the harm inflicting occasions of the competitors regulation tort proceed previous the Rome II datum level ought to trigger the alleged tort to be considered occurring constantly and to due to this fact legit the appliance of the Rome II Regulation to find out the relevant regulation for the complete declare? Although growing authorized certainty and simplifying the selection of regulation course of for cross-border competitors regulation claims, this suggestion has to deal with the principled objection that it will be an unfair departure from the final stance of Rome II of neutrality between claimant and defendant. This objection is presumably much less convincing within the particular context of follow-on competitors regulation claims as right here the existence of an anti-competitive act is already established: in these instances such neutrality could also be argued to perversely favour the wrongdoer. Issues of precept apart, probably the most formidable impediment to any suggestion that competitors claims which straddle the temporal datum level ought to profit from a single technique of relevant regulation choice is Rome II itself: the textual content at present lacks any provision supporting retrospective temporal applicability whether or not rapid or deferred in time.

It’s urged {that a} case based mostly upon growing authorized certainty could be made for a legislative modification to deal with the issue of an absence of transitional provisions regarding the temporal applicability in Rome II for follow-on competitors claims both by permitting a deferred type of retrospective temporal applicability after the effluxion of a sure time frame from 11 January 2009, or, by offering follow-on competitors claims with a brand new particular regime which incorporates non-public worldwide regulation measures extra acceptable to this particular sort of competitors declare.

Within the air cargo cartel SCC and Equilib instances, that are an software for annulment, Rome II doesn’t characteristic ratione temporis nonetheless in accordance with Dutch authority, A6 Rome II is used professional inspiratio. Right here the dedication of ‘markets affected’ is a matter. Just about the travaux and all kinds of scholarship, the AG suggests ‘the regulation of the state on whose market the sufferer was affected by the anti-competitive apply’ should be the lex causae, resulting in Mozaik after all, with then the following dialogue of A6(3)b. In each instances, the AG proposes that the judgment appealed be annulled on the problem of validity of project.

Others little question may have extra evaluation. These are extremely related opinions.

Geert.

EU Non-public Worldwide Legislation, 4th ed. 2024, 4.53 ff.