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To Borgarting Court of Appeal Written Observations Brussels, 28 July 2014 Case No: 75554 Event No: 710884 TO BORGARTING COURT OF APPEAL WRITTEN OBSERVATIONS submitted, pursuant to Article 15(3) of Chapter II of Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice, implemented in Norwegian law by Section 9(2) of the Norwegian EEA Competition Act, by the: EFTA Surveillance Authority Rue Belliard 35 1040 Brussels, Belgium Represented by Agents: Gjermund Mathisen, Senior Officer and Janne Tysnes Kaasin, Temporary Officer, Department of Legal & Executive Affairs in Case No. 13-178315ASD-BORG/02 Appellant: Bastø Fosen AS v/styrets leder Postboks 94 3191 Horten Counsel: Advokat Morten Goller Wikborg, Rein & Co. DA Advokatfirma Postboks 1513 Vika 0117 Oslo Legal representative: Advokat Simen Klevstrand Wikborg, Rein & Co. DA Advokatfirma Respondent: Color Line v/styrets leder Postboks 82 4662 Kristiansand Counsel: Advokat Gunnar Sørlie Advokatfirmaet BA-HR DA Postboks 1524 Vika 0117 Oslo Subject matter: Claim for damages for breach of competition law ________________________________________________________________________ Rue Belliard 35, B-1040 Brussels, tel: (+32)(0)2 286 18 11, fax: (+32)(0)2 286 18 00, www.eftasurv.int TABLE OF CONTENTS 1 INTRODUCTION ...................................................................................................... 3 2 THE IMPORTANCE OF PRIVATE ENFORCEMENT OF EEA COMPETITION LAW ............................................................................................... 4 3 THE OSLO DISTRICT COURT’S JUDGMENT ..................................................... 7 3.1 Background .............................................................................................................7 3.2 Observations on Oslo District Court’s judgment...............................................8 3.2.1 The limitation period – its starting point and its possible suspension or interruption ...........................................................................8 3.2.2 Events prior to 13 December 2009 which led the District Court to conclude that the three-year limitation period had elapsed .................10 3.2.3 The treatment of Article 53 EEA and Article 54 EEA together for the purposes of calculating the limitation period ...................................13 4 GENERAL PRINCIPLES OF EEA LAW ............................................................... 14 4.1 The principle of effectiveness .............................................................................14 4.2 The principle of equivalence ...............................................................................15 5 THE POSSIBILITY TO REQUEST THE EFTA COURT TO GIVE AN ADVISORY OPINION ............................................................................................ 16 6 CONCLUDING REMARKS ................................................................................... 16 7 SCHEDULE OF ANNEXES .................................................................................... 18 2 1 INTRODUCTION 1. On 24 June 2013, the EFTA Surveillance Authority (the “Authority”) received the judgment of Oslo District Court dated 21 June 2013,1 currently under appeal before Borgarting Court of Appeal, from one of the parties (Bastø Fosen). Thereafter, on 19 June 2014, the Authority requested Borgarting Court of Appeal to provide it with copies of the pleadings of the parties. 2. The Authority is submitting these Observations pursuant to Article 15(3) of Chapter II of Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (“SCA”), implemented in Norwegian law by Section 9(2) of the Norwegian EEA Competition Act. Article 15(3) allows the Authority, on its own initiative, to submit written observations to the Norwegian courts “[w]here the coherent application of Article 53 or Article 54 of the EEA Agreement so requires”.2 3. The case before Borgarting Court of Appeal raises important questions of principle and interpretation in relation to Articles 53 and 54 EEA, in particular concerning the enforcement of the EEA competition rules by private parties. The purpose of these Observations is to highlight aspects of EEA law of importance to the proceedings before the Court, in particular in relation to the interpretation of the Norwegian Limitations Act 1979 (foreldelsesloven), which is at the heart of the questions before the Court. 4. In submitting these Observations, the Authority is acting as amicus curiae, with a view to assisting the national court in the application of the EEA competition 1 Case No 12-203595TVI-OTIR/06. 2 Article 15(3) of Chapter II of Protocol 4 SCA provides that: “Where the coherent application of Article 53 or Article 54 of the EEA Agreement so requires, the EFTA Surveillance Authority, acting on its own initiative, may submit written observations to the courts of the EFTA States. With the permission of the court in question, it may also make oral observations”. The Authority also refers to the Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 53 and 54 of the EEA Agreement (included as Annex 1 to these Observations), in particular at paragraph 19. Article 15(3) of Chapter II of Protocol 4 to the SCA corresponds to Article 15(3) of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union (OJ L1, 4.1.2003, p. 1). 3 rules, based on its knowledge and experience in enforcing those rules, a task with which it has been entrusted pursuant to the SCA. 5. In submitting these Observations, the Authority respects the independence of the Court. The assistance offered by the Authority does not bind the Court. The Authority’s assistance is part of its duty to defend the public interest; it has therefore no intention to serve the private interests of the parties involved in the case pending before the Court.3 6. The Authority will address the following issues: in Section 2, the importance of private enforcement of EEA Competition Law before national courts; in Section 3, observations on the Oslo District Court’s judgment, including the main investigatory steps in the Authority’s investigation in its Color Line case; and, in Section 4, general principles of EEA law. 2 THE IMPORTANCE OF PRIVATE ENFORCEMENT OF EEA COMPETITION LAW 7. The enforcement of competition law takes two forms: (i) public enforcement by competition authorities; and (ii) private enforcement by those who have suffered harm as a result of infringing conduct. Both forms of enforcement are crucial to the effective enforcement of the EEA competition rules. While each form serves a common purpose – the public interest in ensuring that competition is undistorted – each form also serves a different, yet complementary purpose: public enforcement is aimed primarily at deterrence, with significant financial penalties imposed on infringing parties; while private enforcement is primarily designed to compensate the victims of anti-competitive conduct, through damages. 8. It follows from the case law of the Court of Justice of the European Union (“Court of Justice”) that the full effect of the competition rules applicable in the EEA would be put at risk if it were not open to any individual to claim damages for 3 See Annex 1, paragraph 19. 4 loss caused to them by a contract or by conduct liable to restrict or distort competition.4 9. Indeed, the right of any individual to claim damages for loss caused to them by conduct which is liable to restrict or distort competition contrary to the EEA competition rules strengthens the function of those rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, thereby making a significant contribution to the maintenance of effective competition in the EEA.5 10. The EFTA Court has noted that the enforcement of the EEA competition rules by private parties should be encouraged, as it can make a significant contribution to the maintenance of effective competition in the EEA.6 11. In that respect, the national courts play a vital role, as recognised in the preamble to Council Regulation (EC) No 1/2003: “National courts have an essential part to play in applying the Community competition rules. When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to the victims of infringements. The role of the national courts here complements that of the competition authorities of the Member States”.7 12. In general, competition authorities, including the Authority, are better placed than victims of anti-competitive conduct to uncover infringements of the EEA competition rules. This is in particular due to the wide-ranging investigative powers competition authorities have at their disposal, powers that are in most cases not available to private parties. Such powers include significant means with 4 See judgment in Courage and Crehan, C-453/99, EU:C:2001:465, paragraph 26. 5 See judgment in Donau Chemie, C-536/11, EU:C:2013:366, paragraph 23. 6 See Case E-14/11 Schenker I [2012] EFTA Ct. Rep. p. 1178, paragraph 132; Case E-5/13 Schenker V, judgment of 7 July 204, paragraph 134. 7 The provisions of Part II of Protocol 4 SCA reflect those of Council Regulation (EC) No 1/2003 and, in accordance with the preamble to the
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