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 und 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 confirmed in essence that an entity, who does not operate on the market affected by the cartel, is nonetheless entitled to claim damages caused by that cartel.
Back in 2007, the European Commission imposed an administrative fine of over EUR 990 million on various companies participating, at least since the 1980s, in the elevators and escalators cartel. In 2010, the Province of Upper Austria (‘Claimant’) brought a follow-on action for damages against the participants in the elevators and escalators cartel (‘Defendants’) before the Commercial Court of Vienna.
The Claimant was neither a direct nor indirect customer of the Defendants for the products covered by the cartel. As a matter of fact, it acted as a public entity granting subsidised loans dedicated to promoting the building of homes. The companies which benefited from those subsidised loans were direct purchasers of the affected products (elevators). As the subsidised loans were calculated as a percentage of the total construction costs, these costs were higher as a result of the overcharge caused by the cartel.
The case went up to the Supreme Court of Austria which referred a preliminary ruling question to the CJEU asking whether “compensation for losses may also be claimed from members of a cartel by persons who are not active as suppliers or consumers on the relevant product and geographic market affected by a cartel, but who grant loans to buyers” of cartelised products.
The judgment of the CJEU
In its judgment, the CJEU starts with a classical recall of its case-law stating that “any person is entitled to claim damages for the harm suffered where there is a causal relationship between that harm” and the cartel (para. 23). Interestingly, the CJEU confirms that private enforcement is a necessary complement of public enforcement of EU competition rules. According to the CJEU, the right of any individual to claim damages contributes to deterring cartel activities (para. 24).
Furthermore, the CJEU confirmed that national law governs the exercise of the right to claim damages and therefore the establishment of the concrete conditions of application and procedural rules related to such right (para. 25). Thus, on the one hand, EU law governs the answers to the questions of who can claim damages, what damages can be claimed and why such damages can be claimed. However, on the other hand, it is national law that shall answer the question of how these damages shall be claimed. Moreover, while adopting the national rules, the Member States must “take into account the objective pursued by Article 101 TFEU, which strives to guarantee effective and undistorted competition in the internal market, and, accordingly, prices set on the basis of free competition” (para. 26).
In addition, as opposed to some national tort laws (such as Austrian or German), the CJEU emphasises it is not necessary “that the loss suffered by the person concerned present, in addition, a specific connection with the ‘objective of protection’ pursued by Article 101 TFEU” (para. 31). Following the Skanska judgment concerning the tortfeasors’ liability, it seems that the CJEU continues in reshaping the Members states’ tort laws in order to harmonise and facilitate the introduction of damage actions in competition cases.
Finally, as AG Kokott stated in her Opinion (point 78), the CJEU confirmed that the full effectiveness of Article 101 TFEU “would be seriously undermined if the possibility for requesting compensation for loss caused by a cartel were limited to suppliers and customers of the market affected by the cartel” (para. 27) given that “any loss which has a causal connection” with the cartel is entitled to be claimed (para. 30). Thus, even the entities not acting directly or indirectly on the market affected by the cartel must be able to claim compensation for loss caused by the cartel (para. 32). In this case, the Claimant’s loss resulted from the fact that the subsidised loans it granted were higher than if the cartel had not existed and therefore, these amounts could not have been used elsewhere in a more profitable way (para. 32).
By following the Opinion of AG Kokott (previously commented by CDC), the CJEU confirmed the right of all victims affected by a cartel to claim damages. Consequently, not only direct and indirect customers, as well as victims of umbrella pricing but also any person is entitled to claim compensation for a loss caused by a cartel including persons not active on the affected market or downstream market. This new judgement of the CJEU must therefore be welcomed as it contributes to strengthening access to justice for cartel victims.
by Juraj Šiška, Vasil Savov, Till Schreiber, and Marc Barennes.