Court of Justice 8 September 2022, C-25/21 (ZA and Others v Repsol Comercial de Productos Petrolíferos SA.)

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In this Opinion in Case C-25/21, Advocate General Pitruzzella opines that Article 9(1) of Directive 2014/104/EU, which establishes an irrefutable presumption of an infringement found by a national competition authority for the purposes of follow-on damages actions, constitutes a substantive provision within the meaning of Article 22(1) of that Directive and is therefore not applicable ratione temporis where the infringement and the damage claimed both predate the expiry of the transposition period. In the absence of applicable EU secondary legislation, the Advocate General argues that Member States retain procedural autonomy to determine the evidential value of national competition authority decisions in private enforcement actions for nullity under Article 101(2) TFEU and for damages, subject to the principles of effectiveness and legal certainty, which require that a final infringement decision be accorded at least the value of an indication or some evidence, and at least prima facie evidence where there is complete coincidence between the infringement found and that relied upon in the civil action as regards its nature and material, personal, temporal, and territorial scope. National legislation or case-law denying any evidential value to such decisions is, in the Advocate General's view, incompatible with EU law.AI