Co-operation with national courts

EFTA Surveillance Authority observations to national courts (amicus curiae observations)

Pursuant to Article 15(3) of Chapter II of Protocol 4 to the Surveillance and Court Agreement, ESA, acting on its own initiative, may submit written observations (“amicus curiae” observations) to courts of the EFTA States where the coherent application of Articles 53 or 54 so requires. With the permission of the court in question, ESA may also make oral observations.

In its Notice on Co-operation with the courts of the EFTA States in the application of Articles 53 and 54 EEA, ESA sets out its policy regarding the application of Article 15(3) of Chapter II of Protocol 4.

The competent national court has given its permission for the following amicus curiae observations to be published:

Case: The Icelandic Competition Authority v Byko ehf. /Norvík hf (Case no.E-550/2016) 

  • National court: The Reykjavík District Court
  • ESA's observations: 27 April 2016 – Icelandic version (pdf); English version (pdf)
  • National court judgment: Pending 

Case: NCC AB and NCC Roads AS v Staten v/Konkurransetilsynet (Case no. 14-076039ASD-BORG/03)

Summary and background

The case concerns a decision by the Norwegian Competition Authority against Veidekke ASA, Veidekke Industri AS, NCC AB and NCC Roads AS for violation of Section 10 of the Norwegian Competition Act and Article 53 of the EEA Agreement. It found that, in the context of work for Vegvesenet  and for Trondheim Municipality, the parties had agreed to: (i) allocate markets and customers, (ii) bid-rigging, and (iii) exchange strategic information.

ESA, acting as amicus curiae, submitted Observations pursuant to Article 15(3) of Chapter II of Protocol 4 SCA, implemented in Norwegian law by Section 9(2) of the Norwegian EEA Competition Act. Article 15(3) allows ESA, 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”. ESA decided to submit observations based on that the judgment of the Court of first instance, the Oslo District Court, annulled the part of the Competition Authority's Decision that applied Article 53 EEA as it found no appreciable effect on trade in the present case.

In ESA's opinion, the case raises a critical question of principle and interpretation of EEA law, namely the interpretation of the effect on trade criterion, which is to be found in both Articles 53 and 54 of the EEA Agreement.

ESA submitted that a too narrow interpretation of the criterion could lead to unequal conditions of competition within the internal market. The fact that an agreement concerns trade in products or services marketed in one State only is not, in ESA's view, a sufficient basis under EEA competition law to conclude that there is no effect on trade between Contracting Parties. Such an erroneous interpretation of the effect on trade criterion puts at risk the uniform application of EU and EEA competition law within the EEA and undermines the objective of the EEA Agreement to establish an internal market with equal conditions of competition throughout the entire EEA. In particular, ESA emphasised that trade between EEA States may also be affected in cases where the relevant market is national or sub-national.

ESA's observations was thus limited to describing the criterion concerning the effect on trade between Contracting Parties and the principles relevant in the application of that criterion, as set out in case law and described in ESA's Guidelines on the effect on trade concept contained in Articles 53 and 54 of the EEA Agreement.

Case: Bastø Fosen AS v Color Line (Case no. 13-178315ASD-BORG/02)

  • National court: Borgarting Court of Appeal
  • ESA's observations: 28 July 2014 – Norwegian version (pdf); English version (pdf)
  • National court judgment: 22 September 2014 – Judgment (Norwegian pdf)

Summary and background

ESA submitted amicus curiae observations to the Borgarting Court of Appeal in Norway, in a case concerning the starting point for and the possible suspension of the limitation period for follow-on actions for damages before the Norwegian courts.

ESA emphasised that as a general rule it is difficult for private parties to obtain the evidence necessary to support a claim for damages if they are not able to base their claim on a final infringement decision of a competition authority. On that basis, ESA submitted its view that, as a matter of principle, the starting point for national limitation periods for follow-on actions for damages, or their length, should be such that potential victims are able to bring a damages claim after an infringement decision by ESA becomes final. Such a position reflects the starting point of the limitation period for follow-on damages actions based on competition decisions of a penal nature in Norway. It also reflects the position taken in the proposed new EU Directive on antitrust damages actions, which is in the final stages of the adoption process.

In its judgment of 22 September 2014, Borgarting Court of Appeal took into account the developments in Norwegian and EU law securing a right for claimants to bring follow-on claims for damages after a final infringement decision by a competition authority, but, on the facts, held that the claimant in this case had had reasonable time to bring its claim within the meaning of the relevant national limitation rules. On that basis, the Court held that the action was time-barred and dismissed the appeal.

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