CHAPTER IIIEFFECT OF NATIONAL DECISIONS, LIMITATION PERIODS, JOINT AND SEVERAL LIABILITY
Article 9Effect of national decisions
1.
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.
2.
Member States shall ensure that where a final decision referred to in paragraph 1 is taken in another Member State, that final decision may, in accordance with national law, be presented before their national courts as at least prima facie evidence that an infringement of competition law has occurred and, as appropriate, may be assessed along with any other evidence adduced by the parties.
3.
This Article is without prejudice to the rights and obligations of national courts under Article 267 TFEU.
Article 10Limitation periods
1.
Member States shall, in accordance with this Article, lay down rules applicable to limitation periods for bringing actions for damages. Those rules shall determine when the limitation period begins to run, the duration thereof and the circumstances under which it is interrupted or suspended.
2.
Limitation periods shall not begin to run before the infringement of competition law has ceased and the claimant knows, or can reasonably be expected to know:
(a)
of the behaviour and the fact that it constitutes an infringement of competition law;
(b)
of the fact that the infringement of competition law caused harm to it; and
(c)
the identity of the infringer.
3.
Member States shall ensure that the limitation periods for bringing actions for damages are at least five years.
4.
Member States shall ensure that a limitation period is suspended or, depending on national law, interrupted, if a competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates. The suspension shall end at the earliest one year after the infringement decision has become final or after the proceedings are otherwise terminated.
Article 11Joint and several liability
1.
Member States shall ensure that undertakings which have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by the infringement of competition law; with the effect that each of those undertakings is bound to compensate for the harm in full, and the injured party has the right to require full compensation from any of them until he has been fully compensated.
2.
(a)
its market share in the relevant market was below 5 % at any time during the infringement of competition law; and
(b)
the application of the normal rules of joint and several liability would irretrievably jeopardise its economic viability and cause its assets to lose all their value.
3.
The derogation laid down in paragraph 2 shall not apply where:
(a)
the SME has led the infringement of competition law or has coerced other undertakings to participate therein; or
(b)
the SME has previously been found to have infringed competition law.
4.
By way of derogation from paragraph 1, Member States shall ensure that an immunity recipient is jointly and severally liable as follows:
(a)
to its direct or indirect purchasers or providers; and
(b)
to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law.
Member States shall ensure that any limitation period applicable to cases under this paragraph is reasonable and sufficient to allow injured parties to bring such actions.
5.
Member States shall ensure that an infringer may recover a contribution from any other infringer, the amount of which shall be determined in the light of their relative responsibility for the harm caused by the infringement of competition law. The amount of contribution of an infringer which has been granted immunity from fines under a leniency programme shall not exceed the amount of the harm it caused to its own direct or indirect purchasers or providers.
6.
Member States shall ensure that, to the extent the infringement of competition law caused harm to injured parties other than the direct or indirect purchasers or providers of the infringers, the amount of any contribution from an immunity recipient to other infringers shall be determined in the light of its relative responsibility for that harm.