On 15 April 2021 the CJEU’s Advocate General (AG) Pitruzzella handed down his opinion in the preliminary ruling procedure relating to the Trucks cartel litigation in Spain. The Barcelona Provincial Court (‘Barcelona Court’) requested the CJEU to interpret EU law on the question of whether a subsidiary company is liable for damages where the Commission has only fined the parent company for anticompetitive behavior. The AG in Case C-882/19 takes the view that, subject to conditions, a subsidiary without being addressee of the cartel decision can be held liable for the damages caused by the infringement. The Opinion, when confirmed by the CJEU, has as well implications on the question of where victims of Europe-wide cartel behavour might bring claims for damages.
Air Cargo Cartel: Application of Art. 101 TFEU in damage actions by national courts (Netherlands: 1 – England: 0)
On 6 May 2021 the CJEU published the opinion by AG Bobek in Case C‑819/19 Stichting Cartel Compensation and Equilib Netherlands BV v. KLM NV et al regarding a request for a preliminary ruling from the Rechtbank Amsterdam. It concerns damage actions against members of the international Air Cargo cartel. The case is particularly interesting as it shows the importance of choosing the right forum for a damage action in EU-wide cartel cases and the risks if national courts do not make use of preliminary rulings that are aimed at ensuring a consistent application of EU law across all Member States. Should the CJEU follow the opinion of AG Bobek, claimants that have pursued damage claims before the Amsterdam Court will have good chances to obtain compensation for the entire duration of the cartel from 1999 to 2006, while claimants before the High Court of England and Wales saw their damage claims significantly reduced to the period between 2004 and 2006.
Paris Court of Appeal provides guidance on damage estimation in competition law cases and awards EUR 250 million in damages
Orange Caraïbe et al. vs Digicel Antilles Françaises Guyane On 17 June 2020, the Paris Court of Appeal (Court) delivered its judgment (Orange judgment) in which it ordered Orange to pay EUR 249.5 million (EUR 181.5 million in damages plus EUR 68 million in interest) to Digicel Antilles and Guyana, following the implementation by the […]
Trucks Cartel: German Supreme Court confirms the binding effect of settlement decisions and the presumption of damages
By judgment of 23 September 2020 (KZR 35/19, translation into English) the German Federal Court of Justice (‘Bundesgerichtshof’, ‘BGH’) provides detailed guidance on legal principles and standards of proof regarding several key aspects of actions for damages resulting from the European trucks cartel. The Bundesgerichtshof confirms that the scope of the infringement established in the […]
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 […]
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 […]
Spanish Trucks Cartel Litigation: Temporal application of EU Damages Directive provisions on limitation and quantification of harm
In the aftermath of Directive 2014/104/EU (Directive), Spain appears to be one of the most active jurisdictions dealing with antitrust damages cases. In particular, a multitude of Spanish courts have been seized with actions for compensation in relation to the European Trucks Cartel (Case AT.39824-Trucks). In that context, preliminary ruling requests were addressed by Spanish […]
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 […]
Towards civil liability of subsidiaries non-addressees of cartel decisions (C-882/19, Sumal)
In a request for a preliminary ruling, the Barcelona Provincial Court asks the EU Court of Justice which legal entities within the undertaking are liable for the damages caused by an infringement of Art. 101 TFEU. Is this liability limited to the addressees of the fining decision or could in principle every legal entity that […]
Choice of forum delicti in EU-wide cartel damages cases (C-30/20, RH vs Volvo)
Does Art. 7(2) Brussels I bis determine territorial jurisdiction within the EU Member States, Madrid Commercial Court asks EU Court of Justice. The request for a preliminary ruling from the Madrid Commercial Court might seem trivial or easy to answer given the recent case law by the Court of Justice of the European Union (‘CJEU’). […]