Following a request for a preliminary ruling from Germany, the CJEU has to assess the availability of the ‘assignment model’ to cartel victims. Private enforcement of competition law in the EU is essentially driven by actions bundling claims for damages assigned by a multitude of victims to a specialised company for joint assessment and enforcement. The question is whether limitations to the assignment model under national law can survive an assessment under EU law.
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.
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.
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.
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.
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.
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.
On 27 July 2022, the District Court of Amsterdam delivered an important judgment in which it confirmed previous case law of Dutch courts on the validity of the ‘assignment model’, by which entities, such as CDC, effectively bundle multiple damage claims in one single action. The judgment is in line with EU law, in particular the principle of effectiveness. By choosing Dutch law as the law applicable to all damage claims, the Court has provided an effective solution for victims of competition law infringements.
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.
On 1 August 2022, the Court of Justice of the European Union has ruled in Case C-588/20 Daimler (Ententes – Camions à ordures ménageres) that specialised trucks are covered by the cartel found in the European Commission’s 2016 decision in Case AT.39824 Trucks. The judgment concerns the fundamental and practically relevant question of how to identify the products directly affected by a cartel infringement according to the decision of a competition authority, which in this respect is binding for the civil courts in a follow-on action for damages. As a result, the right of injured parties to access the Statement of Objections sent by that authority to the cartelists prior to the adoption of the decision will gain in importance, especially if this decision has finally been adopted after a settlement.