E-10/17 Nye Kystlink AS v Color Group AS and Color Line AS
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Deadlines: Motivering departement: 26 december 2017 Schriftelijke opmerkingen: 08 februari 2018 Keywords: competition law Subject: - EEA Agreement Facts: Color Line AS (hereinafter: Color Line) is a Norwegian company currently operating four ferry services between Norway and Sweden, Denmark and Germany, respectively. The group is owned by the company O. N. Sunde AS, which is owned by Olav Nils Sunde, who is also Managing Director of Color Group AS. Color Line has operated ferries between Sandefjord in Norway and Strømstad in Sweden since 1986. On 26.03.1991, Color Line (at the time, Scandi-Line) entered into a harbour agreement with the Municipality of Strømstad on exclusive access to an area at Torskholmen that was reserved for ferry operations. The agreement was valid for a period of 15 years from 01.01.1991 to 30.12.2005 and included an option for Color Line to extend it by 10 years. Kystlink AS is another Norwegian ferry company. In 2000, it started a ferry service between Langesund in Norway and Hirtshals in Denmark, intended to compete with Color Line's service between Larvik and Hirtshals. At that time, Kystlink AS's services primarily addressed the freight market, with Norsk Hydro ASA as the chief owner. For the sake of order, it is pointed out that Kystlink AS is not the same company as the plaintiff Nye Kystlink AS. In November 2003, Kystlink AS initiated a project to establish a new passenger ferry service between Langesund in Norway and Strømstad in Sweden, intended to compete with Color Line's service between Sandefjord and Strømstad. The strategy entailed that the same vessel would sail Langesund – Hirtshals – Langesund at night, and Langesund – Strømstad – Langesund during the day, so that the vessel's capacity was utilised 24 hours a day. Kystlink AS needed permission from the Municipality of Strømstad in order to use the port for ferry activities between Langesund and Strømstad. In November 2003, the company sent an application for such permission to the Municipality of Strømstad. Furthermore, the company needed a vessel that was suitable for the triangular route and entered into negotiations with another shipping company with a view to purchasing the vessel M/S Thjelvar. Kystlink AS's application to the Municipality of Strømstad triggered discussions between Color Line and the municipality, in which Color Line invoked the exclusivity clause in the harbour agreement and notified of possible legal action to enforce it. Color Line also requested a ten-year extension of the harbour agreement based on the option for extension. On 21.12.2005, just before the 15-year contract period under the harbour agreement expired, the Municipality of Strømstad decided to grant Kystlink AS access to the port for a trial period of two years from the start-up date, since the municipality was concerned about whether the exclusivity clause was compatible with competition law. The municipality also denied Color Line's request for an extension of the harbour agreement. The ferry service between Langesund and Strømstad started up in November 2006. Three Kystlink companies are mentioned in the case. The plaintiff, Nye Kystlink AS, was formed in 2012, and succeeded to the former Kystlink companies' possible claim for damages against Color Line. Questions: 1. Does it follow from the EEA law principle of equivalence that a national limitation rule that lays down a separate limitation period of one year for bringing an action for damages arising from a criminal offence that has been established by a final criminal conviction must be applied correspondingly in connection with an action for damages for infringement of Articles 53 and 54 EEA that has been established by a final decision by ESA imposing a fine? 2. Does the EEA law principle of effectiveness restrict the EEA States' right to apply a limitation period of three years for bringing an action for damages for infringement of Articles 53 and 54 EEA, when this limitation period is combined with a duty of investigation on the part of the injured party that could lead to the limitation period expiring before ESA has reached a decision in a case concerning infringement of Articles 53 and 54 EEA based on a complaint from the injured party? 3. What elements should be given weight in the assessment of whether the application of the national limitation period, as mentioned in Question 2, is compatible with the EEA law principle of effectiveness in competition cases of a nature and scope like the present one? Aangehaalde (recente) jurisprudentie: Manfredi C-295/04-C298/04; Specifiek beleidsterrein: EZK