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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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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German Supreme Court provides guidance on applicable law and standards of proof for causality and damage quantification in follow-on damage actions in light of recent CJEU case law

On 29 May 2020 the German Supreme Court (‘Bundesgerichtshof’) published two judgments (KZR 23/17 and KZR 25/17) in which it provides detailed guidance on the legal principles and the standard of proof to be applied for the substantiation of damages in follow-on damage actions in the light of EU law principles. These judgments are of wide interest […]

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CJEU finds national limitation periods in conflict with the EU law principle of effectiveness

On 28 March 2019 in Case Cogeco C‑637/17 the CJEU provided guidance on the application ratione temporis of the EU Damages Directive 2014/104/EU (Directive) and stressed the importance of the principle of effectiveness for damages actions for breaches of EU competition law. The CJEU confirmed that a case-by-case analysis is required in order to assess whether the Directive is […]

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CJEU confirms the right of all cartel victims to obtain redress in Elevators and Escalators cartel case

Introduction The year 2019 was marked by a number of landmark judgements of the Court of Justice of the European Union (‘CJEU’) in the field of private enforcement such as Skanska, Cogeco and Tibor-Trans. On 12 December 2019 the CJEU rendered its judgement in Case-435/18, Otis Geselschaft m.b.H. e.a., (Austrian Elevators and Escalators). Following the Opinion of Advocate General (‘AG’) Kokott, it […]

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The Spanish paper envelopes cartel: Compensation over 40 years later

In 1977, Spain celebrated its first democratic elections in the aftermath of the transition from dictatorship to full democracy. The leading five paper envelope producers used the occasion to create and establish one of the most harmful cartels in Spanish Public Procurement history. Before the elections took place, the transition government were required to buy […]

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Review of economic publication ‘Cartel Dating’

The recent publication on the determination of the period of actual collusive effects by Boswijk, Bun, & Schinkel (“BBS”) is rather timely given the upsurge in private antitrust enforcement across Europe since the introduction of the EU Damages Directive (“Directive”) and its subsequent implementation into Member State law. Background – The Right to Full Compensation The Directive acknowledges the […]

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First Spanish Judgments in trucks cartel follow-on actions

The trucks cartel sanctioned by the European Commission in July 2016 has provoked a flood of individual claims all over Spain. They were filed by all types of transport and logistics companies against the six sanctioned manufacturers, their Spanish subsidiaries and even their financial services providers. Apart from several decisions on jurisdiction and access to […]

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