The estimated damage cannot be less than 5% of the purchase price paid for reasons of effectiveness under EU law.” This was recently stated by the German Federal Court of Justice about claims for damages due to the Dieselgate scandal. However, the Court’s reasoning in favour of this legal lower limit for damages might equally, if not even more so, be applied to cartel damages claims – an analysis.
Decoding Transaction Data in Private Competition Law Damage Litigations: Efficient data management in legal proceedings
In private damage litigations, the effective management of transaction data stands as a pivotal element in building compelling cases. Transaction data plays a central role in the substantiation of a claim, establishing causation, quantifying damages, and pre-emptively addressing defence strategies.
The intricacies of transaction data management present unique challenges, from handling extensive paper-based evidence to ensuring data relevance, integrity, and compliance with data protection regulations. This article explores the complexities of transaction data management within competition law litigations, offering insight into best practices and the evolving landscape of data management technologies.
Tribunal Supremo on trucks cartel, judicial estimation after Tráficos Manuel Ferrer: Judges can estimate without prior disclosure, judicial estimate of 5% overcharge confirmed
In a bundle of 15 cassation judgments, the Tribunal Supremo, the highest civil court in Spain, rules on important questions concerning the ability of the judge to estimate the damage, the need for prior inter partes disclosure, proportionality, and standards for economic expert opinions. The Tribunal does so against the background of the European trucks cartel, the same case that prompted the preliminary ruling in Tráficos Manuel Ferrer. The Tribunal largely upholds the findings of the appellate courts and strengthens the ability of judges to estimate damage. The court also rules, among other questions, on the accrual of interest and limitation.
Challenges in Quantifying Private Antitrust Damages: Addressing Data Availability and Reliability
This article explores the complexities surrounding the quantification of damages and the issue of data asymmetry in private antitrust damage actions in Europe. It delves into the challenges claimants face in quantifying the actual harm caused by anticompetitive behaviour. The article also discusses the role of disclosure rules in promoting fair access to evidence and proposes potential solutions to mitigate the information disparity between claimants and defendants.
Tráficos Manuel Ferrer – a warning to claimants and defendants alike
Shortly after the publication of the Tráficos Manuel Ferrer judgment by the Court of Justice of the European Union (CJEU) in response to a request for a preliminary ruling (16 February 2023), the judge from the Valencia court who had referred the questions to the CJEU delivered his judgment in the same case (10 March 2023). This blog post analyses the key points of the Valencia court judgment concerning economic expert reports.
Connor and Lande data: median recovery rates suggest that cartel effects can be five times higher than cartel fines
Many cartels remain undetected by competition authorities. Even if detected, the estimated negative effects of price-fixing cartels on prices can be five times larger than the fines imposed by the authorities. That is, the level of fines is suboptimal. The analysis is based on the dataset of Connor and Lande. It partially contradicts the results of a recent study that suggests effective recovery of cartel injuries when cartels are discovered.
German Federal Court of Justice confirms factual assumption of harm in case of anticompetitive information exchanges and clarifies scope of liability in multi-product cartels
On 5 January 2023, the German Federal Court of Justice (BGH) published an important judgment in relation to follow-on damage actions relating to the so-called German drugstore products cartel (Case KZR 42/20). In its ruling, Germany’s highest civil court also confirmed a factual presumption of harm in the case of anticompetitive information exchanges. This is an important clarification as the BGH had thus far only acknowledged such factual presumption in cases of price-fixing and market-sharing practices. In addition, the BGH clarified that cartel participants are jointly and severally liable for damages caused in relation to products they do not manufacture themselves if they were aware that the anticompetitive practices extended to the other products.
Trucks cartel: New CJEU landmark judgement empowers victims of antitrust infringements with the right to request ex novo documents, created by the defendants (C-163/21, PACCAR e.a.)
On 10 November 2022, the EU Court of Justice rendered another key judgment in relation to the series of damages proceedings brought in Spain against participants in the European Trucks Cartel. This judgment on the interpretation of Art. 5(1) of the Damages Directive clarifies the wide scope of evidence to which claimants can request access to substantiate potential damages claims. The judgment further strengthens the effectiveness of private enforcement of EU competition rules and should have a positive impact on the whole wave of compensation claims against truck manufacturers in Europe.
Assessing the compatibility of seemingly contradictory statistical evidence in the case of damage estimations (reflections on the article written by Peter Bönisch and Roman Inderst)
In a recent publication, Peter Bönisch and Roman Inderst tackle the delicate issue of the evaluation of seemingly contradictory econometric evidence. Introducing the concept of severity measures, they propose a method to avoid the common obstacles plaguing the interpretation of seemingly conflicting empirical evidence through the practical example of financial damage estimation in follow-on cases. This blog post discusses the ideas presented in the paper.
CJEU clarifies the temporal application of the new EU Damages Directive’s five-year limitation in cartel cases
In its landmark judgment of 22 June 2022 in Case C-267/20 – Volvo and DAF Trucks, the CJEU confirmed that the five-year limitation period under the EU Damages Directive on antitrust damages applies to all cartel damages claims which at the time of the transposition of the Directive into national law were not yet time barred. Equally, the Court stresses that neither the burden nor the standard of proof for the quantification of competition damages must be too high, and that national courts can estimate the amount of cartel damages where the action was brought after 26 December 2014. The judgment provides much awaited legal certainty for many cases in which the temporal application of the new limitation period and the quantification of damages under the Directive is at the heart of the debate.