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: Portuguese competition court grants a 15.4% compensation and applies its national law in line with recent EU case law
On 6 November 2022, the Portuguese Competition, Regulation and Supervision Court of Santarém rendered a key judgment in relation to damages proceedings against participants in the European Trucks Cartel. The Court addressed key points, such as the standard of proof, limitation periods, and net price effects in a comprehensive EU case law state of play-based interpretation of national law. Granting the 15.4% overcharge identified in the claimant’s expert report and rejecting the defendant’s “no damage” argumentation, this judgment will have a positive impact beyond the Trucks Cartel case.
Portugal Competition Authority sanctions Energias de Portugal (EDP) €48m for abuse of its dominant position in the secondary electricity reserve market
On 17 September 2019, the Portuguese Competition Authority fined the electricity company EDP €48 million for abusing its dominant position in the market for secondary electricity reserve services in Portugal between 2009 and 2013 by manipulating its electricity offer from its generating units. Portugal Competition Authority sanctions Energias de Portugal (EDP) €48m for abuse of […]
Portuguese healthcare companies and hospitals sanctioned by the Portuguese Competition Authority (AdC) €190m for collusive behaviour in public health services tenders
On 1 July 2022, the Portuguese Competition Authority (AdC) sanctioned a group of hospitals for collusive behaviour and imposed a total fine of €190.995.000. This conduct restricted competition for hospital health services tenders issued by the public health subsystem Instituto de Proteção e Assistência na Doença (ADSE). ADSE is a public health system reserved mostly […]
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.
Finnish Competition Authority (KKV) proposes a total fine of €44 million on HVAC infrastructure pipeline companies for prohibited cooperation
On 8 September 2022, the Finnish Competition and Consumer Authority (KKV) found that six companies, namely the three largest Finnish wholesalers and the three largest manufacturers of plastic infrastructure pipeline products for heating, ventilation, and air-conditioning (HVAC), had participated in prohibited coordination. The infringement lasted for more than six years, from 2009 to 2016. The […]
Dutch Competition Authority (ACM) publishes a study on Dutch cloud services and identifies switching barriers
On 5 September 2022, the Dutch Competition Authority (ACM) published a market study on potential anti-competitive practices and their negative consequences on the Dutch and European market for cloud services. Dutch Competition Authority (ACM) publishes a study on Dutch cloud services and identifies switching barriers Cloud services are IT services that are offered over the […]