Provisional text

delivered on 19 September 2024 (1)

Case C-253/23

ASG 2 Ausgleichsgesellschaft für die Sägeindustrie Nordrhein-Westfalen GmbH

Land Nordrhein-Westfalen,

joined parties:

Otto Fuchs Beteiligungen KG,

Bundeskartellamt

(Request for a preliminary ruling from the Landgericht Dortmund (Regional Court, Dortmund, Germany))

( Reference for a preliminary ruling – Competition – Actions for compensation for harm caused by infringements of competition rules – Directive 2014/104/EU – Group collection of claims for damages – Validity of assignments to a provider of legal services – Inapplicability of national law precluding the validity of such assignments )

1.The emergence of players on the judicial scene whose aim it is to combine assets based on claims for damages resulting from infringements of EU competition law is not an entirely new phenomenon. (2) Nevertheless, this case gives the Court an unprecedented opportunity to rule on the compliance with EU law of a prohibition on such players on the judicial scene collecting claims relating to harm caused by a cartel using the claim assignment model. More specifically, it is necessary to determine whether such a prohibition complies with Article 101 TFEU, Directive 2014/104/EU (3) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

II. Legal framework

‘This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association. It sets out rules fostering undistorted competition in the internal market and removing obstacles to its proper functioning, by ensuring equivalent protection throughout the Union for anyone who has suffered such harm.’

3. Article 2 of that directive provides:

‘For the purposes of this Directive, the following definitions apply:

…

(4) “action for damages” means an action under national law by which a claim for damages is brought before a national court by an alleged injured party, or by someone acting on behalf of one or more alleged injured parties where Union or national law provides for that possibility, or by a natural or legal person that succeeded in the right of the alleged injured party, including the person that acquired the claim;

…’

‘Member States shall ensure that any natural or legal person who has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm.’

5. Under Article 4 of that directive, which is entitled ‘Principles of effectiveness and equivalence’:

‘In accordance with the principle of effectiveness, Member States shall ensure that all national rules and procedures relating to the exercise of claims for damages are designed and applied in such a way that they do not render practically impossible or excessively difficult the exercise of the Union right to full compensation for harm caused by an infringement of competition law. In accordance with the principle of equivalence, national rules and procedures relating to actions for damages resulting from infringements of Article 101 or 102 TFEU shall not be less favourable to the alleged injured parties than those governing similar actions for damages resulting from infringements of national law.’

6. Article 9(1) of Directive 2014/104 provides:

‘Member States shall ensure that an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 TFEU or under national competition law.’

7. Under Paragraph 1(1) of the Gesetz über außergerichtliche Rechtsdienstleistungen (Law on out-of-court legal services) of 12 December 2007, (4) as amended by the Law of 10 March 2023 (5) (‘the RDG’):

‘This Law regulates the authorisation to provide out-of-court legal services in the Federal Republic of Germany. It serves to protect litigants, legal relations and the legal system against unqualified legal services. …’

8. Under Paragraph 2 of the RDG, which is entitled ‘Definition of legal service’, provides:

‘(1) “Legal service” means any activity related to the specific affairs of others which requires a legal assessment of the individual case.

(2) Regardless of whether the conditions set out in subparagraph 1 are met, the collection of third-party claims or claims assigned for the purpose of collection for the account of a third party shall constitute a legal service where debt collection is conducted as a stand-alone business, including the legal assessment and advice relating to such collection (collection service). Assigned claims shall not be regarded as third-party claims of the previous creditor.

…’

‘The independent provision of out-of-court legal services shall be permitted only to the extent authorised under this Law or by or pursuant to other laws.’

10. Paragraph 10 of the RDG includes the following provision:

‘(1) Natural and legal persons and partnerships with legal personality registered with the competent authority (registered persons) may provide legal services in the following fields on the basis of special expertise:

11. Paragraph 11 of the RDG, which is entitled ‘Special expertise, professional titles’, provides in subparagraph 1:

‘Collection services shall require special expertise in the fields of law relevant to the requested collection activity, in particular in civil law, commercial law, securities law and company law, the law of civil procedure, including enforcement and insolvency law, and the law on costs.’

12. Paragraph 12 of the RDG lays down the conditions for registration and regulatory authorisation. It mentions theoretical and practical expertise in the field referred to in Paragraph 10(1) of that law.

13. Under Paragraphs 2 and 4 of the Rechtsdienstleistungsverordnung (Ordinance on legal services), (6) the proof of theoretical expertise required pursuant to Paragraph 12 of the RDG may be provided, inter alia, by a certificate of completion of a training course with a duration of at least 120 hours which is such as to impart all the knowledge necessary for registration as referred to in Paragraph 10 of the RDG.

III. The facts of the case in the main proceedings, the procedure before the Court and the questions referred for a preliminary ruling

14.On 31 March 2020, ASG 2 Ausgleichsgesellschaft für die Sägeindustrie Nordrhein-Westfalen GmbH (‘ASG 2’) brought an action before the referring court, the Landgericht Dortmund (Regional Court, Dortmund, Germany), pursuant to the rights which had been assigned to it by 32 sawmills established in Germany, Belgium and Luxembourg. ASG 2 is claiming antitrust damages. In those proceedings, the Land of North Rhine-Westphalia (Germany) is accused of having harmonised the prices of unwrought coniferous timber (‘roundwood’) for itself and for other owners of woodland established in that Land, at least during the period from 28 June 2005 to 30 June 2019, in contravention of Article 101 TFEU.

15.The referring court explains that the Bundeskartellamt (Federal Cartel Office, Germany) had conducted investigations into this practice before the action was brought in the main proceedings. In 2009, on the basis of Paragraph 32b of the Gesetz gegen Wettbewerbsbeschränkungen (Law against restrictions on competition, ‘the GWB’), the Federal Cartel Office had adopted a commitment decision under German law and Article 101 TFEU in respect of the Land of North Rhine-Westphalia and other Länder similarly involved in the marketing of roundwood (‘the 2009 commitment decision’).

16.In 2012, the Federal Cartel Office opened a new investigation into the relevant market conditions for the Land of Baden-Württemberg (Germany). On the basis of the findings of that investigation, the Office annulled the 2009 commitment decision and, pursuant to Paragraph 32 of the GWB, issued a prohibitory injunction, which was, however, subsequently annulled by the Bundesgerichtshof (Federal Court of Justice, Germany). There is no decision in respect of the Land of North Rhine-Westphalia other than the 2009 commitment decision.

17.The sawmills concerned are now claiming compensation from the Land of North Rhine-Westphalia for harm suffered since 28 June 2005 in connection with the allegedly inflated prices at which they purchased roundwood originating from the Land of North Rhine-Westphalia as a result of the cartel in question.

18.Each of the sawmills concerned instructed ASG 2 to enforce its claim for compensation, which they assigned to it for that purpose. ASG 2, as a ‘provider of legal services’ within the meaning of the RDG, is licensed under that law.

19.ASG 2 asserted the claims of the assignors in its own name and at its own expense, but in consolidation for the account of the assignors, first out of court and then by means of legal action before the referring court with legal representation.

20.The claim for compensation for harm caused by the cartel was based on several hundred thousand euros of roundwood purchases by the sawmills concerned. For each assignor, those purchases amounted to several thousand or even tens of thousands of transactions. In return, the assignors have promised to pay ASG 2 fees in the event of success.

21.The Land of North Rhine-Westphalia challenges the action as regards both the merits and ASG 2’s legal standing to bring proceedings. It claims that the assignments to ASG 2 were contrary to the RDG and are therefore null and void under German law.

22.The referring court appears to concur with the position of the Land of North Rhine-Westphalia and to take the view that, having regard to German law, the assignments at issue in the main proceedings are null and void.

23.That court explains that in German law claims by individuals may be grouped in order then to be asserted by way of legal action through the claim assignment model (‘Abtretungsmodelle’), also known as ‘collection by group action’ (‘Sammelklage-Inkasso’). Under this model, alleged injured parties assign their presumed claims to a provider of legal services licensed under the RDG, which asserts those claims in consolidation in its own name and at its own expense, for the account of the assignors, in return for a fee contingent on success.

24.According to the referring court, collection by group action is accepted in the case-law of the Bundesgerichtshof (Federal Court of Justice) in various areas of law, namely in tenancy law, in respect of the assertion of air passenger rights and in actions for damages in connection with the ‘Dieselgate’ scandal.

25.The referring court notes that the Bundesgerichtshof (Federal Court of Justice) has not yet had the opportunity to rule on the conformity of collection by group action in the specific context of antitrust damages. However, such action is not admitted by the lower courts in that specific context, and particularly in stand-alone actions which are independent of any findings by the competition authorities.

26.According to those courts, antitrust damages are particularly complex and apt to lead to conflicts of interest. In addition, despite the statutory obligation to provide proof of expertise, collection service providers falling within the scope of the RDG are rarely knowledgeable in this area.

27.In the view of the referring court, these characteristics of antitrust damages are particularly important in a stand-alone action. In the absence of a finding of an infringement of competition law, such an action would require examination of numerous aspects which do not primarily fall within the scope of civil law and which it is ‘impossible to control immediately and easily’.

28.The referring court asserts that, in the absence of such a finding of infringement, recourse to collection by group action in order to obtain antitrust damages therefore clearly exceeds the limit of out-of-court activities conceivable as ‘collection services’ within the meaning of Paragraph 2(2) of the RDG, namely services limited to a legal assessment of claims and advice provided by an expert with a view to the collection of debts within the meaning of Paragraphs 2 and 11 of the RDG, read in conjunction with Paragraphs 2 and 4 of the Ordinance on legal services.

29.The referring court states that, in those circumstances, the assignments at issue in the main proceedings are null and void and that, consequently, the group action for collection based on those assignments must be dismissed without an examination on the merits in the absence of legal standing to bring proceedings. Furthermore, that action would also not have suspensive effect on the limitation period for the assignors, who would therefore no longer be able to assert their claims in an action based on a right of their own.

30.

The referring court also explains that German law does not provide for other equivalent options for ensuring the effective enforcement of the right to compensation for ‘collective harm’ or ‘scattered harm’ in cartel cases.

31.

In that regard, first, the referring court observes that a substantial proportion of the models provided for in German law are not applicable to actions for compensation brought by undertakings.

32.

Second, the referring court states that there is claim assignment in German law in the form of ‘genuine’ factoring, that is to say, not a simply fiduciary transfer, but a full transfer of a third-party claim. However, given the specific characteristics of compensation for harm in cartel matters, that model would not be a valid option. Determining the purchase price and accounting valuation would raise significant difficulties, as the amount of compensation is unknown. The claims would therefore be likely to be sold at a fraction of their nominal value, with the result that injured parties would tend to give up entirely on any prospect of compensation. As a result, such claim assignment would not really make it possible to recover the claims for compensation.

33.

Lastly, the referring court asserts that the grouping of claims in a litis consortium model, that is to say, in the form of joint action taken by multiple assignors, is also not a valid option. Such an action would be difficult to conceive of in the absence of a provider to organise it. In addition, an action brought under a litis consortium model would give rise to only formal consolidation of the actions, which would still be likely to be disjoined.

34.

The referring court states, however, that for the reasons alluded to in points 26 to 28 of this Opinion and despite the absence of any other valid option, it must consider that the assignments at issue in the main proceedings are null and void and dismiss the action brought before it.

35.

Against that background, the question arises whether EU law precludes the interpretation of the RDG given by the referring court, which has the effect of prohibiting the collection of antitrust damages by means of the claim assignment model (‘the prohibition at issue in the main proceedings’). If EU law precludes an interpretation of the RDG to that effect, the referring court would have to disapply the RDG and the assignments would have to be regarded as valid. That court considers that it is not possible to interpret the RDG in conformity with EU law, that interpretation being contra legem.

36.

In the view of the referring court, an interpretation of the RDG which has the effect of the prohibition at issue in the main proceedings is likely to be contrary to Directive 2014/104 and to the principles of effectiveness of EU law and effective judicial protection.

37.

More specifically, in the first place, with regard to Directive 2014/104, the referring court’s doubts relate to Article 3(1) and the third variant in point 4 of Article 2 of that directive. According to that court, those provisions confirm the right of injured parties to full compensation for harm caused by a cartel and extend it to persons ‘that succeeded in the right of the alleged injured party, including the person that acquired the claim’. In addition, the third variant in point 4 of Article 2 of that directive refers precisely to the assignment model at issue in the main proceedings and that directive does not allow Member States any discretion. The referring court asserts that while the second variant referred to in point 4 of Article 2 refers to the domestic law of a Member State (‘someone acting on behalf of one or more alleged injured parties where Union or national law provides for that possibility’), the third variant does not include any such reference in respect of assignment.

38.

In the second place, the referring court states that it has doubts whether the prohibition at issue in the main proceedings is compatible with Article 101 TFEU and Article 4(3) TEU. Although, according to case-law, it is open to ‘any person’ to claim full compensation for the harm he or she has suffered as a result of a breach of antitrust law, the Member States must guarantee the effectiveness of that right and, in particular, not render its exercise impossible or excessively difficult. The referring court observes that the Court has previously held, with regard to copyright, that injured parties must not be deprived of the possibility, which is ‘widespread in various fields of law’, of assigning their claims for compensation to specialised undertakings, in particular on account of difficulties they may face recovering those claims themselves.

39.

Lastly, in the third place, the referring court has doubts as to whether the prohibition at issue in the main proceedings is compatible with the principle of effective judicial protection enshrined in the first paragraph of Article 47 of the Charter. That principle confers on everyone the right to an effective remedy that is actually suitable for enforcing the legal situation protected by EU law. Everyone has the possibility of being advised, defended and represented.

40.

The referring court recognises that, according to the judgment in Alassini and Others, an infringement of the right to effective judicial protection may be envisaged exceptionally, ‘provided that the [infringement] in fact correspond[s] to objectives of general interest pursued by the measure in question and that [it does] not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed’. However, according the referring court, the prohibition at issue in the main proceedings does not meet those conditions. First, less onerous measures than the complete prohibition of the collection of damages are conceivable. Second, the prohibition at issue in the main proceedings affects the substance of the right to effective judicial protection, as persons who may be injured by a cartel are refused any effective protection.

41.

In those circumstances, the Landgericht Dortmund (Regional Court, Dortmund) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is EU law, particularly Article 101 TFEU, Article 4(3) TEU, Article 47 of the [Charter], and [point 4 of Article 2] and [Article 3(1)] of [Directive 2014/104] to be interpreted as precluding an interpretation and application of the law of a Member State which has the effect of prohibiting a person who may have suffered harm by an infringement of Article 101 TFEU – established, with binding effect, on the basis of Article 9 of [Directive 2014/104] or the national provisions transposing that article – from assigning on a fiduciary basis his or her claims for compensation – particularly in cases of collective or scattered harm – to a licensed provider of legal services, so that that provider can claim together with the claims of other alleged injured parties, by means of a follow-on action if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, in particular because they do not allow a judgment requiring performance [of payment of damages] to be sought, of if they are not practicable for other procedural reasons or are objectively unreasonable for economic reasons, with the consequence, in particular, that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount?

(2) Is EU law in any event [to] be interpreted in this way if the claims for damages at issue have to be pursued without a prior decision on the alleged infringement from the European Commission or national authorities that has a binding effect within the meaning of national provisions based on Article 9 of [Directive 2014/104] (known as a “stand-alone action”), if other equivalent legal or contractual possibilities for consolidating civil law claims for damages do not exist for the reasons already set out in question 1, and, in particular, on the contrary, an action based on an infringement of Article 101 TFEU would not be brought, either via public enforcement nor via private enforcement?

(3) If at least one of those two questions is answered in the affirmative, must the relevant provisions of German law remain unapplied if an interpretation which complies with EU law is ruled out, which would have the consequence that assignments [of claims for compensation] are in any event effective from that point of view and would render effective enforcement of law possible?’

42.

Written observations were submitted by the parties to the main proceedings, the German Government and the Commission. Except for Otto Fuchs Beteiligungen KG (‘Otto Fuchs’), all those parties participated in the hearing which was held on 7 May 2024.

43.

In the present case, the national court has referred three questions for a preliminary ruling.

44.

The first two questions concern the conformity with EU law of the interpretation of national law which has the effect of prohibiting the collection of antitrust damages by means of the claim assignment model. The third question asks whether the referring court may disapply national provisions which do not comply with EU law. That last question is asked only in the event that the Court answers at least one of the first two questions in the affirmative.

45.

Before turning to the substance of those first two questions, it would seem necessary to make some brief preliminary remarks on the admissibility of the request for a preliminary ruling.

(a) The first question referred for a preliminary ruling

46.

Otto Fuchs, the Land of North Rhine-Westphalia and the Commission assert that, in so far as the referring court is not hearing a follow-on action, but rather a stand-alone action, the first question is not admissible because it obviously bears no relation to the actual facts of the main action or its object.

47.

I concur with this argument.

48.

It is settled case-law that questions referred for a preliminary ruling which relate to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only if it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

49.

It is in the light of that settled case-law that the arguments concerning the inadmissibility of questions referred for a preliminary ruling should be examined.

50.

In the present case, the referring court distinguishes the first question from the second by making reference to Article 9 of Directive 2014/104. Whereas the first question concerns the situation where an action for damages is brought after a finding ‘with binding effect’, for the purposes of that provision, of an infringement of competition law by a final decision of a national competition authority or by a review court (follow-on action), the second question concerns the situation where an action for damages is brought in the absence of such a decision (stand-alone action).

51.

In those circumstances, given that ASG 2 has brought a single action before the referring court which concerns the same infringement of competition law, one of the first two questions bears no relation to the actual facts of the main action or its object.

52.

In that regard, under Article 9(1) of Directive 2014/104, Member States must ensure that an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 TFEU or under national competition law. In addition, under point 11 of Article 2 of that directive, ‘infringement decision’ means a decision of a competition authority or review court that finds an infringement of competition law. Point 12 of Article 2 of the directive explains that such a decision is final where it can no longer be appealed by ordinary means.

53.

The referring court states that there is no decision in respect of the Land of North Rhine-Westphalia other than the 2009 commitment decision. It must therefore be determined whether that decision finds an infringement and thereby produces the legal effects described in Article 9(1) of Directive 2014/104.

54.

According to the order for reference, in the 2009 commitment decision the Federal Cartel Office established specific thresholds for timber marketing collaborations as well as market-position reduction measures for the Land of North Rhine-Westphalia. In addition, that court notes that the decision was taken on the basis of Paragraph 32b of the GWB.

55.

Although Paragraph 32b of the GWB is not reproduced in the request for a preliminary ruling, its wording does correspond to the wording of Article 9 of Regulation (EC) No 1/2003, as is acknowledged by the Federal Cartel Office. That provision of German law, like the first sentence of Article 9(1) of that regulation, provides that where an undertaking offers, in proceedings conducted by that office, commitments to meet the concerns expressed to it by the Office in its preliminary assessment, the Office may by decision make those commitments binding on the undertakings. Furthermore, as is provided in the second sentence of Article 9(1) of that regulation, the effects of such a decision may be limited in time, but it must conclude, in any case, that there are no longer grounds for action by the Office. Lastly, the Federal Cartel Office may revoke its decision in virtually the same situations as are listed in Article 9(2) of Regulation No 1/2003 and reopen the proceedings.

56.

A commitment decision adopted on the basis of Article 9 of Regulation No 1/2003 does not contain a final finding on an infringement of Articles 101 and 102 TFEU. The closure of the infringement proceedings brought against undertakings following a commitment decision allows them to avoid a finding of an infringement of competition law and a possible fine. In this sense, as is clarified by recital 13 of Regulation No 1/2003, such decisions should find that there are no longer grounds for action by the Commission ‘without concluding whether or not there has been or still is an infringement’. Accordingly, in proceedings under Article 9 of that regulation, the Commission is not required to make a finding of an infringement, its task being confined to examining, and possibly accepting, the commitments offered by the undertakings concerned in the light of the problems identified by it in its preliminary assessment and having regard to the aims pursued.

57.

The Court has held that national courts cannot overlook commitment decisions adopted by the Commission and that ‘the objective of applying EU competition law effectively and uniformly require[s] the national court to take into account the preliminary assessment carried out by the Commission and regard it as an indication, if not prima facie evidence, of the anticompetitive nature of the agreement at issue in the light of Article 101(1) TFEU’. However, this passage cannot be understood to mean that a commitment decision contains a finding of an infringement of competition law.

58.

The passage does not refer to any commitment decision, but rather to ‘the preliminary assessment’ carried out by the Commission which, if necessary, can make known facts with a certain probative value for an action for damages brought before a national court. As the Court itself explained, this probative value is comparable to that of an indication or prima facie evidence, without, however, being evidence which, taken in isolation, would allow a finding of an infringement of competition law.

59.

There is nothing to suggest that in German law a commitment decision adopted on the basis of Paragraph 32b of the GWB produces effects going beyond those of a decision taken by the Commission pursuant to Article 9 of Regulation No 1/2003. Thus, subject to the verifications which fall within the jurisdiction of the national court, in so far as the 2009 commitment decision does not find an infringement of competition law, that decision is not such as to produce the effects referred to in Article 9(1) of Directive 2014/104. Consequently, it must be held that the first question bears no relation to the actual facts of the main action or its object and is therefore inadmissible.

60.

That consideration is not called into question by the Federal Cartel Office’s argument that, because of the existence of the 2009 commitment decision and proceedings initiated before the German courts in connection with that decision, the main action is a hybrid follow-on action. According to the Office, such an action falls somewhere between a follow-on action and a stand-alone action. The Office acknowledges that, in such a hybrid follow-on action, evidence of harm would be facilitated by the existence of a previous decision of a national authority based on facts that are comparable, wholly or in part, to those at issue in the main action. However, the parties in the main proceedings could not rely on the binding effect of a decision of a national authority for the purposes of Article 9 of Directive 2014/104.

61.

It must therefore be held that the first question referred for a preliminary ruling is inadmissible. Subject to the argument relating to the stand-alone nature of the action for damages at issue in the main proceedings, which I have just examined, the other arguments put forward by Otto Fuchs and by the Land of North Rhine-Westphalia are not such as to lead to a finding that the first question is inadmissible. I will, however, examine those arguments in so far as, first, their examination could prove useful in the event that the Court does not concur with my position regarding the inadmissibility of the first question and, second, they are relied on in support of the view that the second question is also inadmissible.

(b) The second question referred for a preliminary ruling

62.

Otto Fuchs and the Land of North Rhine-Westphalia put forward a series of arguments to support the view that the second question referred for a preliminary ruling is inadmissible.

63.

In the first place, those parties assert that as the referring court does not pose an open question, together with the different envisaged answers, it does not have doubts as to the interpretation of EU law. It bases its position on an interpretation of EU law according to which it can consider that the national legislation is not consistent with EU law.

64.

This argument must be rejected. The second question referred for a preliminary ruling does concern the interpretation of EU law and relates to the main action. It is for the referring court alone to determine whether it needs to obtain clarifications from the Court with regard to that question. Nor does the categorical formulation of some of the referring court’s reasoning call into question the admissibility of its question. In its order for reference, a national court or tribunal may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling, without any risk of its order being rejected as inadmissible. This is precisely what the referring court has done in this case.

65.

In the second place, there are likewise no grounds to accept the argument that the second question is hypothetical in so far as it refers to ‘scattered’ harm and is founded on the assumption that ‘it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount’ if claims for compensation based on antitrust law could not be made in consolidation by means of collection by group action, whereas the main action relates to neither scattered harm nor damages for a small amount.

66.

I should note in that regard that the notions of ‘scattered’ harm and damages ‘for a small amount’ are not notions defined by EU law. In the order for reference, those notions are merely descriptive and the national court alone has jurisdiction to find and assess the facts in the case before it. The notion of ‘scattered harm’ (‘Streuschäden’) is defined by the referring court as designating harm which represents minimal harm for an injured party, but the amount of which is high if all injured parties are added up. The notion of ‘collective harm’ (‘Massenschäden’), which is also used in the questions referred, is not defined by that court, but seems to allude to the situation where multiple parties claim to have suffered harm in the form of in loss brought about by the same causal event. According to legal literature, collective harm is also differentiated from scattered harm by the extent of the harm suffered by each party individually. Collective harm is sufficiently significant for each individual to have an interest in claiming compensation for the harm suffered. However, it is complex and expensive for each injured party to seek redress for it.

67.

In the third place, Otto Fuchs and the Land of North Rhine-Westphalia criticise the referring court for basing its order for reference on the assumption that there is no other option than collection by group action and, furthermore, if claims for compensation based on antitrust law could not be made in consolidation by means of such collection by group action, it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount and an action based on an infringement of Article 101 TFEU would not be brought, either via public enforcement of the rules of competition law or via private enforcement of those rules.

68.

In that regard, the findings relating to the factual and legislative context are indeed premisses on which the questions referred for a preliminary ruling are based. It is also true that some of the parties have made comments to supplement or contest the factual and legislative context of the dispute in the main proceedings. In essence, those parties criticise the referring court’s finding that in German law there is no other option, as an effective legal remedy, than the claim assignment model that would allow the rights of injured parties to be protected.

69.

The assessment whether there are other models which allow injured parties to exercise their rights vis-à-vis the perpetrator of an infringement of competition law is a matter of interpretation of national law. In that regard, under the division of jurisdiction between the Courts of the European Union and the national courts, since the referring court has defined the factual and legislative context of the questions it is asking, it is not for the Court to verify the accuracy of those questions. Similarly, as regards the criticism concerning the factual and legislative context of the order for reference at issue in this case, the Court also cannot replace a national court and respond to that criticism.

70.

Nevertheless, in so far as the findings relating to the factual and legislative context contained in the order for reference constitute premisses on which the questions referred for a preliminary ruling are based, I take the view that the Court should draw the referring court’s attention to that criticism so as to allow it to determine how to apply EU law as interpreted by the Court. The fact that the Court is obliged to rule on the order for reference is without prejudice to the possibility, for the referring court, if necessary, to verify the premisses on which its questions are based.

71.

Without prejudice to the foregoing, the second question must be considered to be admissible.

72.

By its second question, the referring court seeks to ascertain, in essence, whether Article 101 TFEU, point 4 of Article 2, Article 3(1) and Article 4 of Directive 2014/104 and Article 47 of the Charter must be interpreted as precluding the interpretation of national law which has the effect, in the absence of a final decision finding an infringement of competition law, of prohibiting alleged injured parties from assigning on a fiduciary basis claims for compensation for harm caused by a cartel to a licensed provider of legal services, so that that provider can assert those claims together, if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, with the consequence, first, that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount and, second, that an action based on an infringement of Article 101 TFEU would not be brought, either via public enforcement of the rules of competition law or via private enforcement of those rules.

(a) The relevant provisions

73.

The second question relates to the interpretation of Article 101 TFEU, Article 47 of the Charter and provisions of Directive 2014/104. In so far as this question concerns the interpretation of that directive, consideration should be given to its temporal scope. I will then briefly examine the relevance of Article 4(3) TEU.

74.

The referring court assumes that point 4 of Article 2 and Article 3(1) of Directive 2014/104, the interpretation of which is being sought, are applicable in this case, irrespective of whether those provisions are procedural or substantive rules. Under Article 22(2) of that directive, the relevant provisions thereof are applicable to actions for damages brought after 26 December 2014. Furthermore, the referring court notes that the main action concerns conduct allegedly practised until 30 June 2019, well after the expiry of the time limit for transposition of that directive. Therefore, in accordance with the judgment in Volvo and DAF Trucks, the substantive rules of that directive should be applied not only to the part of the cartel period after the expiry of the time limit for transposition, but to the entire cartel period.

75.

Although I take the view that the provisions referred to in the second question are applicable in the main proceedings, I am not convinced by the analysis conducted by the referring court.

76.

It should be recalled that the action was brought on 31 March 2020 and concerns compensation for harm caused by alleged practices which took place between 28 June 2005 and 30 June 2019.

77.

The time limit for transposition of Directive 2014/104 was fixed at 27 December 2016 (Article 21(1)). In addition, the national measures transposing the substantive provisions of that directive cannot apply retroactively (Article 22(1)), whilst the national rules transposing other provisions of the directive, that is to say, the procedural provisions, cannot apply to actions for damages of which a national court was seised prior to 26 December 2014 (Article 22(2)).

78.

Accordingly, a priori, in order to determine the temporal applicability of the provisions of Directive 2014/104, it must be ascertained whether or not the provision concerned is a substantive provision. However, as regards the question of the temporal application of the provisions of that directive, it is necessary to draw a distinction based on whether those provisions derive, in the light of the case-law, from Article 101 TFEU itself or stem solely from that directive, which requires an examination of their temporal applicability in the light of Article 22 of that directive.

79.

The right to full compensation for harm resulting from an infringement of competition law was not established by Directive 2014/104, but stems directly from provisions of primary law as interpreted by the Court in its case-law prior to the adoption of that directive. This is confirmed by several recitals of that directive. Consequently, according to the Court, national measures transposing Article 3(1) of the directive ‘must necessarily apply with immediate effect to all actions for damages falling within the scope of [Directive 2014/14], as confirmed by Article 22(2) thereof’. Given the date on which the main action was brought, namely 31 March 2020, that is to say, well after the expiry of the time limit for transposition of that directive, the action at issue in the main proceedings unquestionably falls within its temporal scope. Accordingly, Article 3 of the directive applies in the dispute in the main proceedings.

80.

The question of the temporal application of point 4 of Article 2 of Directive 2014/104 in the dispute in the main proceedings is more problematic. As is indicated by its title, Article 2 contains definitions of the terms used in that directive. Prima facie, a definition of a legal concept used in an act of EU law is not substantive or procedural in nature. Rather, its nature is determined by the specific provision to which that concept relates.

81.

However, the second question is based on a reading of point 4 of Article 2 of Directive 2014/104 to the effect that that directive determines who is able to assert a right to full compensation for harm resulting from infringements of EU competition law or, possibly, in what manner it is possible to rely on such a right. In addition, the referring court seems to take the view that the effect guaranteed by that provision stems from Article 101 TFEU, as interpreted by the Court in its case-law. I would therefore suggest that point 4 of Article 2 of Directive 2014/104 is applicable in the dispute in the main proceedings in accordance with the approach taken by the Court in its case-law concerning the temporal application of the provisions of that directive which confirm the approaches based on primary law. In other words, the interpretation I will present below holds both for Article 101 TFEU and for the provisions of Directive 2014/104.

82.

In its second question, the national court also refers to Article 4(3) TEU. A reading of the order for reference suggests that the referring court treats that provision as being equivalent to the principle of effectiveness or the effet utile of Article 101 TFEU. It is, however, sufficient to interpret the latter provision in order to be able to rule on both the principle of effectiveness and the effet utile of that provision. Furthermore, under the system of Directive 2014/104, it is Article 4 that enshrines the principle of effectiveness and that provision must therefore also be interpreted. Consequently, I suggest that by its second question the referring court has in view Article 101 TFEU, Article 47 of the Charter, and point 4 of Article 2 of Directive 2014/104, as well as Article 3(1) and Article 4 thereof.

(b) The prohibition of the claim assignment model

(1) General remarks

83. In order to answer the second question, it must first be determined whether the interpretation of national law which has the effect, in the absence of a final decision finding an infringement of competition law, of prohibiting alleged injured parties from assigning on a fiduciary basis claims for compensation for harm caused by a cartel to a licensed provider of legal services relates to an aspect governed directly by EU law or is a matter coming under the legal order of each Member State.

84. It should be made clear in this regard that the prohibition at issue in the main proceedings does not deprive the party that suffered harm caused by a cartel of its capacity as a victim of an infringement of competition law. However, that prohibition stems from the invalidity of the assignment of that party’s claim to a licensed provider of legal services which, in its own name and at its own expense but for the account of the assignors, asserts the claims of the assignors in consolidation. In order to answer the question referred, it must be established whether the conditions for the validity of the transfer of the claim for compensation for harm are governed by EU law or by the applicable national law.

(2) The distinction between the constitutive conditions of the right to compensation for harm and the detailed rules governing the exercise of that right

85. It seems appropriate to recall the distinction drawn by Advocates General Kokott and Wahl between the constitutive conditions governing liability for an infringement of EU competition law, indeed the constitutive conditions governing the right to claim damages, and the detailed rules governing the exercise of the right to compensation for harm caused by the infringement of competition law. In essence, according to those Advocates General, whilst the former fall directly under EU law, such that a national measure infringing the direct effect of EU law must be disapplied, the latter come under national law and are subject to the classic limitations of the procedural autonomy of the Member States. (32)

86. I concur with this interpretation for the following reasons.

87. In the first place, this dichotomy follows from the division of competences between the European Union and the Member States. On the one hand, under Article 3(1)(b) TFEU, the European Union has exclusive competence with regard to the competition rules necessary for the functioning of the internal market. On the other hand, other rules applicable to competition which do not fall within the scope of that exclusive competence, in the absence of rules of EU law, fall within the competence of the Member States.

88. Article 101 TFEU is one of the competition rules referred to in Article 3(1)(b) TFEU which are necessary for the functioning of the internal market. (33)

89. The right to compensation for harm caused by an infringement of Article 101 TFEU goes beyond simple compensation for harm suffered by injured parties as it strengthens, more generally, the working of the EU competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, thereby making a contribution to the maintenance of effective competition in the European Union. (34) The private enforcement of competition law is also necessary for the functioning of the internal market. The establishment of the conditions governing the existence and the essence of the right to compensation for harm caused by an infringement of Article 101 TFEU must therefore fall within the exclusive competence of the European Union. However, it is for each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from EU law. (35)

90. In the second place, although the Court has not expressly recognised the distinction drawn by the Advocates General, it is reflected in its case-law. In particular, it has stated that, unlike the rules relating to the assessment of evidence and the requisite standard of proof which, in the absence of EU rules on the matter, are covered, in principle, by the procedural autonomy of the Member States, the constituent elements of the infringement must be present if an undertaking is to be found liable for a concerted practice. (36) On similar lines, the Court has regularly examined the question of who may rely on the right to compensation for harm caused by such an infringement from the point of view of the effet utile of Article 101 TFEU. (37)

91. In the third place, this reading is corroborated by Directive 2014/104. Article 4 of that directive, which is entitled ‘Principles of effectiveness and equivalence’, states that, in accordance with the principle of effectiveness, Member States must ensure that all national rules and procedures relating to the exercise of claims for damages are designed and applied in such a way that they do not render practically impossible or excessively difficult the exercise of the European Union right to full compensation for harm caused by an infringement of competition law.

92. In those circumstances, it must be held that EU law governs the constitutive conditions of the right to compensation for harm caused by such an infringement.

93. Generally speaking, in private law, subject to the situation where a specific provision limits the group of persons who may be considered victims of an infringement of a rule of law, the determination of who is entitled to compensation stems from the combined application of the constitutive conditions for liability, namely the existence of damage, a causal link between the damage claimed and the conduct alleged, and the illegality of such conduct. On the basis of those conditions it is possible to establish the identity of the injured party entitled to compensation for harm. Similarly, EU law determines who may claim the right to compensation for harm caused by an infringement of Article 101 TFEU through the constitutive conditions governing liability for an infringement of competition law.

94. If EU law determines who may claim the right to full compensation for harm caused by an infringement of competition law, the further question arises whether it also determines the transferability of such a right to compensation and the conditions for the validity of an assignment of that right.

(3) The conditions for the validity of the assignment

95. The transferability of a claim, (38) or indeed a right, is one of the characteristics determining whether that right is assignable. In essence, in private law the majority of general pecuniary rights are assignable. (39)

96. As regards the question whether the assignment of a claim for compensation against the European Union is valid, the Court has held that such a claim could be assigned but that, in accordance with the general principle common to the laws of the Member States applicable in the EU legal order, an abusive assignment is not valid against the authorities concerned. (40) It cannot be inferred from this, however, that EU law determines the conditions for the validity of any right to compensation derived from EU law. Under the second paragraph of Article 340 TFEU, the non-contractual liability of the European Union is governed by the general principles common to the laws of the Member States. Consequently, the question of the division of competences between the European Union and the Member States does not arise in the same way in the context of that liability and in cases where, as in this instance, EU law determines only the constitutive conditions for the claim in question.

97. Recently, in the context of the right of air passengers to compensation guaranteed by Regulation (EC) No 261/2004, (41) the Court described the transfer of that right to a third party, which was done in order to spare the passenger difficulties and costs that might deter him or her from taking steps personally, as a means for exercising that right to compensation. (42) At the same time, the Court stated that the passenger could transfer his or her claim to a third party ‘where provided for by the relevant national law’. (43) That consideration can be transposed to the present case in so far as it follows that the assignment of a right to compensation may constitute a means for exercising it and that the limitations on such assignment are determined by national law.

98. It is true that the transferability of the right to compensation can be considered, as such, to stem from the very nature of that right and thus directly from EU law. However, the present case concerns the conditions for the validity of the assignment of the right to compensation which the alleged injured parties, like air passengers, derive directly from EU law. Thus, the assignment of a right to full compensation for harm caused by an infringement of competition law is also a means for the individual benefitting from that right to exercise it. The conditions under which such assignment can be made are therefore determined by national law.

99. Contrary to the remarks made by the referring court in its request for a preliminary ruling, (44) that interpretation is not called into question by the lessons that can be drawn from point 4 of Article 2 of Directive 2014/104.

(4) Point 4 of Article 2 of Directive 2014/104

100. The fact that point 4 of Article 2 of Directive 2014/104 makes reference, in the third variant set out in that provision, to claims brought by ‘a natural or legal person that succeeded in the right of the alleged injured party, including the person that acquired the claim’ does not mean that EU law imposes on Member States a form of assignment model or the specific conditions for the validity of such assignment.

101. That reference appears in a provision which defines ‘action for damages’ for the purposes of Directive 2014/104. It therefore dispels any doubt as to whether the provisions of that directive also apply to proceedings brought by persons that succeeded in the rights of the injured party. (45) However, as the Commission asserts in its written observations, that legal definition of a concept does not entail any obligation for the Member States to introduce the assignment model in substantive law. Nor, therefore, does that definition determine whether or under what conditions the right to full compensation for harm caused by an infringement of competition law may be assigned by a person who has suffered such harm.

102. Nor can an obligation to recognise the assignment model be inferred from the reference to national law in the second variant in point 4 of Article 2 of Directive 2014/104. It is true that that variant includes a reference to national law (‘someone acting on behalf of one or more alleged injured parties where Union or national law provides for that possibility’ (46)), whereas no such reference appears in the third variant relating to the succession in the right of the alleged injured party.

103. However, first of all, at the hearing the Commission explained that there was no reference to national law in the third variant in point 4 of Article 2 of Directive 2014/104 because, when that directive was adopted, all the Member States recognised the possibility of assigning the claim for compensation. As I have already stated, (47) the transfer of a claim originating from an unlawful act is accepted in the EU legal order as it reflects a general principle common to the laws of the Member States.

104. Second, the fact that, unlike the third variant, the second variant in point 4 of Article 2 of Directive 2014/104 refers to EU law and to national law must be interpreted in the light of recital 13 of that directive. That recital states that the right to compensation is recognised for any natural or legal person, referring in that context to ‘consumers, undertakings and public authorities’, but that that directive should not require Member States to introduce collective redress models for the enforcement of Articles 101 and 102 TFEU.

105. At present, collective actions fall within the scope of Directive (EU) 2020/1828. (48) That directive describes a collective action as an action brought by a qualified entity on behalf of consumers. (49) During the travaux préparatoires for the directive, it was discussed whether to include infringements of competition law within its scope. Because of reluctance as to the way forward, that inclusion was ultimately abandoned. (50)

106. The fact that opposing ideas emerged during the travaux préparatoires concerning the regulation in EU law of collective actions relating to infringements of competition law shows that, unlike the transfer of a claim originating from an unlawful act, which is generally accepted in the legal orders of the Member States, (51) no specific form for such an action was unanimously accepted within the European Union. In my view, this explains why in point 4 of Article 2 of Directive 2014/104 the legislature referred to national law and to EU law with regard to the availability of collective redress.

107. In the light of the foregoing, it must be held that the assignment of the claim for compensation for harm caused by an infringement of competition law to a licensed provider of legal services which, in its own name and at its own expense but for the account of the assignors, asserts their claims in consolidation constitutes a means for exercising that right.

(c) Compliance with EU law of the prohibition of the claim assignment model

108. The conditions for the validity of an assignment of a claim for compensation for harm caused by an infringement of competition law to a licensed provider of legal services are governed not by EU law, but by the applicable national law. However, in accordance with the principle of procedural autonomy, those conditions cannot be less favourable than those relating to similar domestic claims (principle of equivalence) and cannot be so framed as to make it, in practice, impossible or excessively difficult to obtain reparation (principle of effectiveness). (52) As the order for reference mentions only the principle of effectiveness, I shall focus on it. Before that principle is examined, it should be noted that the second question concerns both the principle of effectiveness and Article 47 of the Charter. It must therefore be ascertained whether the prohibition at issue in the main proceedings should be examined from the point of view of the principle of effectiveness or from the point of view of the Charter.

(1) The principle of effective judicial protection

109. The Commission asserts that the prohibition at issue in the main proceedings restricts one of the means of access to justice by imposing limits on the assignment of claims for compensation based on competition law. It examines that prohibition from the point of view of the principle of effectiveness and Article 47 of the Charter.

110. In that regard, whereas the first paragraph of Article 47 of the Charter does establish a procedural right, (53)

from the point of view of the party injured by an infringement of Article 101 TFEU the prohibition at issue in the main proceedings stems from the invalidity of the assignment in substantive law and therefore concerns the assignment model that operates prior to judicial proceedings. It could be argued a priori that this is not a limitation of the right of effective judicial protection of the party injured by an infringement of competition law. Following on that reasoning, the procedural implications of that invalidity, namely the absence of legal standing to bring proceedings, would, in respect of an assignee, be merely the consequences of the invalidity of the assignment agreements.

111.However, Article 47 of the Charter enshrines the idea that there is a link between the procedural right to an effective remedy and the right derived from EU law. According to the very wording of that provision, the right to an effective remedy concerns the situation where rights and freedoms guaranteed by the law of the European Union are violated. There is no doubt that those rights and freedoms may be substantive. It is established that the alleged victims of an infringement of Article 101 TFEU may rely on the right to a fair trial guaranteed by Article 47 of the Charter.

112.Furthermore, the Court has recognised that national legislation which provides that a fixed-term worker whose employment contract is terminated with a notice period is not at the outset informed in writing of the reason or reasons for that dismissal restricts the access of such a fixed-term worker to legal proceedings, the guarantee of which is enshrined in particular in Article 47 of the Charter. According to the Court, that worker is, in that way, deprived of important information for assessing whether his or her dismissal is potentially unjustified and, if so, for preparing a legal challenge to that dismissal before the courts.

113.In those circumstances, the prohibition at issue in the main proceedings must also be regarded as a limitation of the principle of effective judicial protection.

114.Where the principle of effectiveness and the principle of effective judicial protection enshrined in Article 47 of the Charter are at issue, the Court seeks to determine whether the detailed procedural rules give rise to a significant risk that holders of a right guaranteed by the EU legal order will not exercise their rights. In other words, in such a case the requirement stemming from the principle of effectiveness that the exercise of the right should not be rendered practically impossible or excessively difficult is interpreted to the effect that there is a risk of inertia on the part of individuals.

115.Furthermore, as the referring court observes, the principle of effective judicial protection is not absolute. A limitation of that principle must nevertheless comply with Article 52(1) of the Charter, under which any limitation on the exercise of a fundamental right must be ‘provided for by law’ and respect the essence of that right but also, subject to the principle of proportionality, may be made only if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

116.As I will show below, the requirement stemming from the principle of effectiveness may also be subject to concessions.

117.I therefore propose to examine the prohibition at issue in the main proceedings from the point of view of its compliance with the principle of effectiveness in conjunction with the principle of effective judicial protection.

(2) The combined application of the principles of effectiveness and effective judicial protection

118.In the absence of rules of EU law governing the matter, in accordance with the principle of procedural autonomy, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from EU law. The principle of effectiveness requires that the protection of the rights which individuals derive from EU law is not subject to conditions that may render practically impossible or excessively difficult the exercise of those rights.

119.I should point out that national measures regulating, in substantive law, the validity of the assignment of a claim constitute ‘detailed procedural rules’ in accordance with the concept of the procedural autonomy of the Member States. The principle of effectiveness therefore precludes the prohibition of the claim assignment model at issue in the main proceedings only if it does not render practically impossible or excessively difficult the exercise of the right to full compensation for harm caused by a cartel. Furthermore, as I have stated, it follows from Article 47 of the Charter that such detailed rules cannot give rise to a significant risk that holders of a right guaranteed by the EU legal order will not exercise their rights.

120.The second question is based on the premiss that the prohibition of the prohibition at issue in the main proceedings has such effect and renders it practically impossible or in any event excessively difficult to bring an action for damages for a small amount. Although it is debatable whether the main action concerns a small amount, the referring court seems to consider that to be the case.

121.In any event, in reviewing a national measure from the point of view of the principle of effectiveness, it is not sufficient to consider the measure in isolation. Instead, consideration should be given to all the aspects of the national regime in question.

122.The referring court states in this regard, first, that in German law there is no other valid option than the claim assignment model at issue in the main proceedings and, second, that the national legislation precludes such a model and renders the assignment null and void as a penalty. These two premisses are fiercely disputed by the parties. I do not think that it is useful to reiterate the criticisms raised in that regard. In any event, the Court cannot call into question the factual and legislative context defined by the referring court. Instead, it would be for the referring court to reconsider the merits of those premisses, which may also be reviewed by higher courts.

123.Furthermore, it is established that parties allegedly injured by a cartel may rely individually on their rights before German bodies. However, according to the referring court, asserting claims for antitrust damages is a complex exercise in terms of subject matter, economics and law and is therefore a protracted, expensive and risky process. The considerable investment in time and money required and the litigation risk involved are prohibitive for small and medium-sized enterprises, so that claims tend, with a rational apathy, not to be pursued.

124.In those circumstances, the question arises whether the detailed procedural rules applicable to individual actions are not themselves contrary to the principles of effectiveness and effective judicial protection. Requirements which are capable of deterring the exercise of the right guaranteed by the EU legal order before national bodies do not comply with those principles. It is true that the request for a preliminary ruling does not concern actions for damages brought individually by victims of an infringement of competition law. However, it is for the referring court to satisfy itself that an individual action is not an effective means of protecting individuals before being able to consider that the claim assignment model is the only valid means for exercising the right to full compensation.

125.In the same vein, the referring court seems to state that, because of the prohibition at issue in the main proceedings and given the applicable limitation periods, assignors would in any event no longer be able to assert their claims individually. In that regard, the Court has held that a national measure requiring the individual to bring a new action, where appropriate before a different court, in order to have determined the appropriate penalty for an infringement of EU law, does not comply with the principle of effectiveness in so far as it results in procedural disadvantages for that individual, in terms, inter alia, of cost, duration and the rules of representation.

126.In the light of the foregoing and assuming that the premisses on which the referring court relies are established, the prohibition at issue in the main proceedings should be considered to render excessively difficult the exercise of the right to full compensation for harm caused by a cartel and therefore to give rise to a significant risk that holders will not exercise their rights. Consequently, that prohibition does not comply with the principles of effectiveness and effective judicial protection.

127.It remains to be examined whether that prohibition can nevertheless be reconciled with the principle of effectiveness in the light of the objectives on which it is based.

(3) Basic principle of the judicial system

128.In examining national measures from the point of view of the principle of effectiveness, it is necessary to take into consideration the principles which lie at the basis of the national legal system concerned, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. However, the protection of a basic principle of the judicial system of a Member State does not allow that Member State to ignore the principle of effectiveness entirely. Instead, it is necessary to determine whether a national measure which is contrary to that principle may be justified with a view to protecting such a fundamental principle of the judicial system. Furthermore, the Court has also stated that, in certain circumstances, account may be taken, in such an examination, of the particular features of the situations and interests at issue in order to strike a balance between the requirement of the basic principle of the judicial system concerned and the consequences that follow from compliance with that principle for the application of EU law.

129.The concessions made by the principle of effectiveness in favour of a basic principle of the judicial system concerned must therefore respect similar conditions to those governing limitations on fundamental rights. As I have stated, a limitation on a fundamental right must respect the essence of that right and, subject to the principle of proportionality, may be made only if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

130.In the present case, it must therefore be examined whether the prohibition at issue in the main proceedings may be justified in order to protect recipients of such services, having regard to the consequences that follow from it for the application of EU law and for victims of infringements of competition law.

131.The prohibition at issue in the main proceedings appears to be based on considerations related to the protection of parties that may have been injured by an infringement of competition law. First, the prohibition stems from non-compliance with the requirement relating to the necessary expertise of the provider of legal services, which was introduced to protect the recipient of services against unqualified legal services. Second, the prohibition seeks to avoid the risk of a conflict of interest which could harm the situation of recipients of such services.

132.Although the referring court makes no statement on this point, it is conceivable that the protection of recipients of legal services is a basic principle of the national judicial system concerned. Like mandatory representation by a person authorised to practise before a court of a Member State, such protection seems to be aimed at safeguarding the right to a fair trial and the right to effective legal protection of individuals.

133.A reading of the order for reference suggests that the prohibition at issue in the main proceedings is applied automatically in respect of any recourse to the claim assignment model with a view to bringing a group action for collection in matters of competition law. Although some of the parties state that this approach is not consistent with the relevant national case-law, it is for the referring court to determine whether that prohibition is indeed applied automatically or whether, on the contrary, it is based on an assessment of whether there might be a conflict of interest or insufficient powers on the part of the assignee, having regard to the purpose and characteristics of the action in question. I will continue my analysis on the presumption that this prohibition is applied automatically. The order for reference merely makes general statements without mentioning the plausibility of the existence of such a conflict of interest or insufficient powers on the part of the assignee concerned. Nor is there anything to suggest that the assignee can provide additional evidence and contest the invalidity of the assignment.

134.The order for reference thus suggests that the prohibition at issue in the main proceedings in any case renders illusory the possibility for parties injured by a cartel to exercise their rights guaranteed by the EU legal order by means of the claim assignment model.

135.In those circumstances, in view of the consequences that follow from it for the application of EU law and for victims of infringements of competition law and given the crucial role played by private enforcement of competition law in the EU legal order, the prohibition at issue in the main proceedings cannot be justified by the requirement of respect for the right to a fair trial and to effective legal protection of individuals.

It must therefore be held that Article 101 TFEU, point 4 of Article 2, Article 3(1) and Article 4 of Directive 2014/104 and Article 47 of the Charter must be interpreted as precluding the interpretation of national law which has the effect, in the absence of a final decision finding an infringement of competition law, of automatically prohibiting alleged injured parties from assigning on a fiduciary basis claims for compensation for harm caused by a cartel to a licensed provider of legal services, so that that provider can assert those claims together, if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, with the consequence that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount. That prohibition cannot be justified by the requirement of respect for the right to a fair trial and to effective legal protection of individuals.

The third question referred for a preliminary ruling

137.By its third question, the referring court seeks to ascertain, in essence, whether Article 101 TFEU, Directive 2014/104 and Article 47 of the Charter must be interpreted as meaning that the referring court must disapply the national provisions forming the basis for the prohibition of the claim assignment model which does not comply with the principles of effectiveness and effective judicial protection.

138.Otto Fuchs and the Land of North Rhine-Westphalia contest the admissibility of the third question referred for a preliminary ruling. In essence, those parties assert that the question does not concern the interpretation of EU law, contrary to the requirement under Article 267 TFEU, but rather the application of EU law at national level in a particular case and the inferences to be drawn by the referring court regarding the decision to be delivered.

139.The wording of the question might in fact suggest that it concerns the application of EU law. However, by this question the referring court is seeking to ascertain whether, having regard to the principle of primacy, Article 101 TFEU, Directive 2014/104 and Article 47 of the Charter allow a national provision which does not comply with EU law to be disapplied. This question is not without interest, given that the first two questions concern, inter alia, the interpretation of secondary law and that the dispute in the main proceedings is between individuals. More importantly, the question concerns the interpretation of EU law.

140.According to my answer to the second question, in the light of the factual and legislative context described by the referring court, the prohibition at issue in the main proceedings does not comply with the principles of effectiveness and effective judicial protection.

141.It must be stated that, although the third question is based on the premiss that an interpretation of the national provisions which complies with EU law is ruled out, the referring court does not explain why a nuanced interpretation of the RDG might not be possible in this case. It should be borne in mind that when national courts apply domestic law, they are bound to interpret it, to the greatest extent possible, in the light of the wording and the purpose of the provision of EU law at issue, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that that provision is fully effective and to achieving an outcome consistent with the objective pursued by it. (73)

142.Moreover, the second question concerns, inter alia, the interpretation of the provisions of Directive 2014/104 and the dispute in the main proceedings is between individuals. However, that directive confirms only the right to full compensation for harm caused by an infringement of competition law, as guaranteed by Article 101 TFEU. The prohibition at issue in the main proceedings therefore constitutes a detailed rule governing the exercise of a right stemming from a provision which has direct effect. (74)

143.Accordingly, if the referring court considered that it could not uphold an interpretation of the provisions forming the basis for the prohibition at issue in the main proceedings that was consistent with the principles of effectiveness and effective judicial protection, it would be required to disapply those national provisions and to hold that the claim assignments are valid. (75)

144.I therefore propose that the third question be answered to the effect that Article 101 TFEU, Directive 2014/104 and Article 47 of the Charter must be interpreted as meaning that the referring court must disapply the national provisions forming the basis for the prohibition at issue in the main proceedings which does not comply with the principles of effectiveness and effective judicial protection.

145.In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Landgericht Dortmund (Regional Court, Dortmund, Germany) as follows:

(1) Article 101 TFEU, point 4 of Article 2, Article 3(1) and Article 4 of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Article 3(1) and Article 4 thereof and Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding the interpretation of national law which has the effect, in the absence of a final decision finding an infringement of competition law, of automatically prohibiting alleged injured parties from assigning on a fiduciary basis claims for compensation for harm caused by a cartel to a licensed provider of legal services, so that that provider can assert those claims together, if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, with the consequence that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount. That prohibition cannot be justified by the requirement of respect for the right to a fair trial and to effective legal protection of individuals.

(2) Article 101 TFEU, Directive 2014/104 and Article 47 of the Charter of Fundamental Rights

must be interpreted as meaning that the referring court must disapply the national provisions forming the basis for the prohibition of the claim assignment model which does not comply with the principles of effectiveness and effective judicial protection.

* * *

3. Directive of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

5. BGBl. 2023 I, p. 1.

6. BGBl. I S. 1069.

7. Emphasis added.

8. The national court refers in that regard to the judgments of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 26); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 90 and 95); of 12 December 2019, Otis Gesellschaft and Others (C‑435/18, EU:C:2019:1069, paragraph 22); and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 33).

10. Judgment of 18 March 2010 (C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 63).

11. See, recently, judgment of 27 June 2024, Peigli (C‑41/23, EU:C:2024:554, paragraph 32).

12. See point 16 of this Opinion.

13. Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

14. See the first sentence of Paragraph 32b(1) of the GWB.

15. See the third sentence of Paragraph 32b(1) of the GWB.

16. See the second sentence of Paragraph 32b(1) of the GWB.

17. See Paragraph 32b(2) of the GWB.

18. See judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraph 48).

21. See case-law cited in footnote 7.

22. See Wrbka, S., ‘European Consumer Protection Law: Quo Vadis? Thoughts on the Compensatory Collective Redress Debate’, in Wrbka, S., van Uytsel, S., and Siems, M. (eds), Collective Actions. Enhancing Access to Justice and Reconciling Multilayer Interests?, Cambridge, Cambridge University Press, 2012, p. 43.

23. See, to that effect, judgment of 29 June 2023, International Protection Appeals Tribunal and Others (Attack in Pakistan) (C‑756/21, EU:C:2023:523, paragraphs 37 and 38).

25. Judgment of 22 June 2022 (C‑267/20, EU:C:2022:494).

26. The national measures to transpose the procedural provisions of Directive 2014/104 thus apply to actions brought after the date of its transposition. The Member States therefore enjoyed a measure of discretion in deciding, when transposing that directive, whether the national measures intended to transpose the directive’s procedural provisions would also apply to actions for damages brought after 26 December 2014, but before the date of transposition of that directive. See judgment of 12 January 2023, RegioJet (C‑57/21, EU:C:2023:6, paragraph 45).

27. See judgment of 16 February 2023, Tráficos Manuel Ferrer (C‑312/21, EU:C:2023:99, paragraph 33).

28. As is clear from recital 4 of Directive 2014/104, the right to compensation for harm resulting from infringements of EU competition law is laid down in EU law. Similarly, recitals 11 and 12 of that directive state, respectively, that that right is guaranteed by the FEU Treaty and that the directive reaffirms the European Union acquis on the right to compensation for harm caused by infringements of Union competition law, conferred by EU law.

29. See judgment of 16 February 2023, Tráficos Manuel Ferrer (C‑312/21, EU:C:2023:99, paragraph 35).

30. See point 78 of this Opinion.

31. By way of illustration, see judgment of 22 September 2022, Vicente (Action for the recovery of lawyers’ fees) (C‑335/21, EU:C:2022:720, paragraphs 54 and 75).

32. See, to that effect, Opinions of Advocate General Kokott in Kone and Others (C‑557/12, EU:C:2014:45, point 23), and in Otis Gesellschaft and Others (C‑435/18, EU:C:2019:651, point 44), and Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, points 40 and 41).

33. See, by analogy, judgment of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraph 21).

34. See, to that effect, judgments of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 27), and of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 42).

35. See, to that effect, judgment of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 29).

36. See, to that effect, judgments of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 21), and of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:204, paragraphs 26 to 28).

37. See case-law cited in footnote 7.

38. See footnote 8.

In German law, Paragraph 33 of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil Code), in its version applicable until the entry into force, on 17 December 2009, of Paragraph 1 of the Gesetz zur Anpassung der Vorschriften des Internationalen Privatrechts an die Verordnung (EG) Nr. 593/2008 (Law adapting the rules of private international law to [the Rome I] Regulation) of 25 June 2009 (BGBl. 2009 I, p. 1574), provided in subparagraph 2 that ‘the law governing the transferred claim shall determine <i>its transferability</i>, the relationship between the new creditor and the debtor, the conditions under which the transfer may be enforced against the debtor and the discharging effect of its performance’ (emphasis added).

* * *

39See Article 11:302 of the Principles of European Contract Law and Article III:5:109 of the Draft Common Frame of Reference. See also von Bar, Ch., Clive, E., Schulte-Nölke, H. et al. (eds), <i>Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR)</i>, Outline Edition, Sellier European Law Publishers, Munich, 2009, p. 260. In essence, those provisions of the model rules of European private law refer to claims and rights which, in principle, are not assignable.

40See judgments of 4 October 1979, <i>Ireks-Arkady</i> v <i>EEC</i> (238/78, EU:C:1979:226, paragraph 5), and of 1 March 1983, <i>DEKA Getreideprodukte</i> v <i>EEC</i> (250/78, EU:C:1983:49, paragraph 15). See also Opinion of Advocate General Mancini in <i>DEKA Getreideprodukte</i> v <i>EEC</i> (250/78, EU:C:1983:5, point 6).

41Regulation of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

42See judgment of 29 February 2024, <i>Eventmedia Soluciones</i> (C‑11/23, EU:C:2024:194, paragraph 43).

43See judgment of 29 February 2024, <i>Eventmedia Soluciones</i> (C‑11/23, EU:C:2024:194, paragraph 44).

44See point 37 of this Opinion.

48Directive of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ 2020 L 409, p. 1).

49See Article 3(5) of Directive 2020/1828.

50See, to that effect, Rodger, B.J., Sousa Ferro, M., and Marcos, F., ‘A Panacea for Competition Law Damages Actions in the EU? A Comparative View of the Implementation of the EU Antitrust Damages Directive in Sixteen Member States’, <i>Maastricht Journal of European and Comparative Law</i>, 2019, Vol. 26, No 4, pp. 502 and 503. Ultimately, under Article 2(1) thereof, Directive 2020/1828 concerns only representative actions brought against infringements that harm or may harm the collective interests of consumers. Furthermore, that directive concerns only infringements of the provisions of EU law referred to in Annex I thereto, which do not include Article 101 TFEU.

51See point 96 of this Opinion.

52See, to that effect, judgment of 28 June 2022, <i>Commission</i> v <i>Spain (Breach of EU law by the legislature)</i> (C‑278/20, EU:C:2022:503, paragraph 33).

53See, to that effect, judgment of 22 December 2010, <i>DEB</i> (C‑279/09, EU:C:2010:811, paragraph 40), in which the Court noted that the right to an effective remedy before a court, enshrined in Article 47 of the Charter, is to be found under Chapter VI of that charter, relating to justice, in which other procedural principles are established.

54See, to that effect, judgment of 11 July 2024, <i>Volvo (Service of summons at the registered office of a subsidiary of the defendant)</i> (C‑632/22, EU:C:2024:601, paragraph 54).

55See judgment of 20 February 2024, <i>X (Lack of reasons for termination)</i> (C‑715/20, EU:C:2024:139, paragraph 78).

56See, to that effect, judgment of 13 September 2018, <i>Profi Credit Polska</i> (C‑176/17, EU:C:2018:711, paragraph 61 and the case-law cited).

57See point 40 of this Opinion.

58See judgment of 20 September 2001, <i>Courage and Crehan</i> (C‑453/99, EU:C:2001:465, paragraph 29).

59See, to that effect, judgment of 3 September 2020, <i>Delfly</i> (C‑356/19, EU:C:2020:633, paragraph 33), in which the Court held that the manner in which the euro is converted to a national currency falls within the procedural autonomy of the Member States and must comply with the principles of equivalence and effectiveness.

60See point 114 of this Opinion.

61See points 68 to 70 of this Opinion.

62See, to that effect, judgment of 13 September 2018, <i>Profi Credit Polska</i> (C‑176/17, EU:C:2018:711, paragraph 68).

63See point 29 of this Opinion.

64See judgment of 14 September 2016, <i>Martínez Andrés and Castrejana López</i> (C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 63).

65See, to that effect, judgment of 27 June 2013, <i>Agrokonsulting-04</i> (C‑93/12, EU:C:2013:432, paragraph 48).

66See, to that effect, judgment of 3 September 2009, <i>Fallimento Olimpiclub</i> (C‑2/08, EU:C:2009:506, paragraph 28).

67See, to that effect, judgment of 20 May 2021, <i>X (LPG road tankers)</i> (C‑120/19, EU:C:2021:398, paragraph 74 and the case-law cited).

68See point 115 of this Opinion.

69See judgment of 4 October 2012, <i>Byankov</i> (C‑249/11, EU:C:2012:608, paragraph 78).

70See point 29 of this Opinion.

71See, with regard to mandatory representation and its aims, Opinion of Advocate General Ruiz-Jarabo Colomer in <i>Lancôme</i> v <i>OHIM</i> (C‑408/08 P, EU:C:2009:634, point 48).

72See point 89 of this Opinion.

73See, recently, judgment of 11 July 2024, <i>Plamaro</i> (C‑196/23, EU:C:2024:596, paragraph 42).

74See, to that effect, judgment of 25 January 2024, <i>Em akaunt BG</i> (C‑438/22, EU:C:2024:71, paragraph 37).

75See, to that effect, judgment of 6 October 2021, <i>Sumal</i> (C‑882/19, EU:C:2021:800, paragraphs 70 to 72).