Court of Appeal rules on temporal scope of EU competition law

29 Jan 2019

La Gaitana Farms SA & Ors v British Airways Plc [2019] EWCA Civ 37

In a judgment handed down today in the air cargo cartel damages litigation, the Court of Appeal (Master of the Rolls; Flaux and Bean LJJ) has held that the national court did not have jurisdiction to award damages for a contravention of what is now Article 101 TFEU in relation to collusion on surcharges on air freight services provided between the EU and third countries, during the period prior to 1 May 2004. Under the transitional regime that applied during that period, the national court could only consider such conduct if the European Commission or the designated national regulatory authorities had first made a relevant decision. Moreover, the Court of Appeal held that the advent of Regulation 1/2003 did not change the position such as to enable the national court now to apply Article 101 TFEU to pre-1 May 2004 conduct on flights between the EU and third countries, despite the fact that the transitional regime no longer applies to such conduct. The judgment contains a detailed exposition of the general principle of the non-retrospectivity of substantive legal rules and is therefore of significant wider interest.

Philip Moser QC acted for the “La Gaitana” Appellants at the hearing of the appeal.

Jon Turner QC and Michael Armitage acted for the Respondent, British Airways.

Daniel Beard QC and Tom Sebastian acted for the “Part 20” Respondents to the appeal.

This is the latest judgment in the air cargo litigation, which encompasses a large number of claims that have now settled. Monckton Chambers has been at the heart of the litigation, and (in addition to the individuals above) the following Members of Chambers have all previously been instructed in the proceedings: