The European Court of Justice is being asked whether the
Damages Directive (2014/104/EU) can be applied to a competition law action that
was brought prior to the 27 December 2016 implementation date.
The Lisbon Commercial Court has asked the Court to make a
preliminary ruling in an action launched in February 2015. Canadian cable company Cogeco brought in the
Lisbon Commercial Court a claim for €11.5 million in damages from Sport TV,
Portugal’s main pay-TV sports channel. More
than a year after the due date for implementation, Portugal has not yet
implemented the directive.
The Portuguese Civil Code has a three year limitation period
for seeking non-contractual damages and the conduct at issue occurred before
the Commission’s vote on the directive in November 2014.
The reference highlights that notwithstanding the enactment
of the damages directive and its goals to harmonise procedural rights across
the EU in competition cases, there will remain scope for satellite litigation
on how to interpret rights under EU law.
It may be that the Court does not provide particularly
detailed guidance on the scope of the directive and will instead focus on the
effectiveness of national law in giving effect to EU law rights.
Request for a preliminary ruling from the Tribunal Judicial
da Comarca de Lisboa (Portugal) lodged on 15 November 2017 — Cogeco
Communications Inc v Sport TV Portugal and Others (Case C-637/17)
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