AG Rantos delivers a halfway opinion on the temporal application of the EU Antitrust Damages Directive (C-267/20, AB Volvo, DAF TRUCKS NV / RM)

In his opinion of 28 October 2021, Advocate General Rantos confirmed that the nature of the rules implementing the EU Damages Directive is determined by EU law and not by national law. The Advocate General states that the provisions on limitations and presumption of cartel-related harm are substantive. In contrast, the possibility for national judges to estimate the amount of harm is a procedural provision. Moreover, AG Rantos considers that pre-Directive knowledge-based limitation periods applied to cartel damage claims could reasonably begin with the publication of a fining decision’s multilingual summary.

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Antitrust Damages in the Ad-Tech Sector

On 22 June 2021, the European Commission confirmed the opening of a formal antitrust investigation into whether Google previously abused or is currently abusing its dominant position in the online intermediation of programmatic display advertising business. Prior to the Commission’s announcement, the French Competition Authority (FCA) had already handed down a decision on 7 July 2021, including a EUR 220 million fine, finding that Google breached Article 102 TFEU and the French Competition Act in the same advertisement sector.

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Revival of the ‘claims assignment class action’ in German private antitrust enforcement (and beyond)

Corporate victims of anticompetitive practices by their suppliers regularly consider their possibilities to exercise their rights in the best interest of their company. On 13 July 2021, the Federal Court of Justice (Bundesgerichtshof) held that the ‘class action collection’ (Sammelklage-Inkasso) is permissible. Correcting a contrary trend followed by lower courts, the landmark AirDeal judgment of Germany’s supreme court fundamentally confirms the legality of the opt-in ‘assignment model’, i.e. the contractual transfer of claims for damages of numerous victims of the same infringement to a specialised third party for the purpose of bundling, analysis, and joint enforcement of these claims. This approach from a procedural economy perspective has become increasingly important all over Europe in recent years, especially for private antitrust cases due to a lack of effective collective redress mechanisms. In Germany, it has also been approved by a current reform of statutory law.

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Les dommages et intérêts dans les affaires de position dominante : l’exemple de Google Shopping

Si une multitude d’actions en réparation sont régulièrement déposées devant les juridictions de divers pays de l’Union européenne en rapport avec l’article 101 TFUE (pensez, par exemple, à l’abondance des litiges contre les constructeurs de camions), il n’en va pas encore de même pour les affaires d’abus de position dominante. Bien que la Directive régissant […]

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Beyond ORWI: German Supreme Court continues clarifying the ‘passing-on defence’ in cartel damages cases

Cartel members sued for damages regularly invoke as a defence that the plaintiff passed on the overcharge resulting from their unlawful behaviour to its own customers (the ‘indirect purchasers’) and was hence not entitled to claim damages for it. In the well-known ORWI judgment of 28 June 2011 (KZR 75/10), the Federal Court of Justice […]

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Private damages in dominance cases: the example of Google Shopping

While a plethora of damages claims are regularly filed in front of jurisdictions in various countries of the European Union related to Article 101 TFEU (think, for example, the abundance of litigation against truck manufacturers), the same is not yet true for abuse of dominance cases. Notwithstanding that the Damages Directive is equally applicable to […]

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Full steam ahead: German Supreme Court provides further guidance on ‘umbrella claims’ and the ‘passing-on defence’

Are there no public benefits from a hardcore cartel? The German Rails Cartel, at least, continues to contribute to the general development of private claims for damages resulting from an infringement of the EU cartel prohibition (Article 101 TFEU) and its national equivalent. From this perspective, it supports consumers, by promoting legal certainty for an […]

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Spanish Trucks Cartel Litigation: Temporal application of EU Damages Directive provisions on limitation and quantification of harm

In the aftermath of Directive 2014/104/EU (Directive), Spain appears to be one of the most active jurisdictions dealing with antitrust damages cases. In particular, a multitude of Spanish courts have been seized with actions for compensation in relation to the European Trucks Cartel (Case AT.39824-Trucks). In that context, preliminary ruling requests were addressed by Spanish […]

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Paris court of appeal awards EUR 249 million in antitrust damage action against Orange

On 17 June 2020, the Paris Court of Appeal (hereinafter the “Court”) handed down its judgment (hereinafter the “Orange ruling”) in which it ordered Orange to pay EUR 249.5 million (EUR 181.5 million in damages plus EUR 68 million in interest) to the telecom operator Digicel for anti-competitive practices implemented in the West Indies in the early […]

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What makes a jurisdiction attractive for follow-on damage actions? The case of the Netherlands

This article is the first in a series on private enforcement in the Netherlands. Introduction Over the past 10 years the Netherlands has established itself as one of the key jurisdictions for private damage actions in the field of competition law in the EU. Claimants have brought multiple follow-on actions, mainly relating to pan-European cartel […]

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