In an interesting decision the Supreme Court of Norway confirms jurisdiction of the Norwegian courts for a follow-on damage action based on the principles of joint and several liability and the civil liability of the ‘undertaking’.
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.
Trucks cartel: AG Szpunar clarifies the application of Article 5 of the EU Damages Directive to documents to be created ex novo
On April 7, 2022, AG Szpunar delivered its opinion in the context of a request for a preliminary ruling made by the Commercial Court 7 of Barcelona to the CJEU concerning, i.a, the interpretation of Article 5(1) of Directive 2014/104/EU on the disclosure inter partes of evidence.
Contribution to the CNMC’s public consultation on quantification of damages
The Spanish Competition Authority (CNMC) plans to support judges by developing guidelines on quantifying damages caused by competition law infringements. The CNMC held a public consultation on the draft version of these guidelines. The contributions were published on the CNMC’s website, including ours. While the issues we picked up were partially addressed by the draft guidelines, we believe they merit further elaboration.
AG Rantos delivers a halfway opinion on the temporal application of the EU Antitrust Damages Directive (C-267/20, AB Volvo, DAF TRUCKS NV / RM)
In his opinion of 28 October 2021, Advocate General Rantos confirmed that the nature of the rules implementing the EU Damages Directive is determined by EU law and not by national law. The Advocate General states that the provisions on limitations and presumption of cartel-related harm are substantive. In contrast, the possibility for national judges to estimate the amount of harm is a procedural provision. Moreover, AG Rantos considers that pre-Directive knowledge-based limitation periods applied to cartel damage claims could reasonably begin with the publication of a fining decision’s multilingual summary.
Sumal v Mercedes Benz: CJEU confirms civil liability of a subsidiary for the participation of its parent company in a competition law infringement
On 6 October 2021, the Court of Justice of the European Union rendered its judgment in Case C-882/19, Sumal SL v Mercedes Benz Trucks España SL. Following the Opinion of Advocate General Pitruzzella, the CJEU has confirmed that, under certain conditions, a subsidiary which is not the addressee of the administrative decision can be held liable for the damages caused by the infringement for which the parent company has been fined.
Collective actions and claims aggregation in the Netherlands
This article continues the series on private enforcement in the Netherlands. New collective actions regime On 1 January 2020 the new collective actions regime in the Netherlands entered into force. Under the new regime, representative bodies can bring collective damage actions for monetary compensation including for damages caused by cartels and other anticompetitive conduct. Collective […]
Antitrust Damages in the Ad-Tech Sector
On 22 June 2021, the European Commission confirmed the opening of a formal antitrust investigation into whether Google previously abused or is currently abusing its dominant position in the online intermediation of programmatic display advertising business. Prior to the Commission’s announcement, the French Competition Authority (FCA) had already handed down a decision on 7 July 2021, including a EUR 220 million fine, finding that Google breached Article 102 TFEU and the French Competition Act in the same advertisement sector.
First Italian judgment awarding damages against the European trucks cartel (Naples “Diego Armando Maradona” Stadium: Salernitana 1 – Juventus 0)
The trucks cartel fined by the European Commission in 2016 and 2017 triggered a wave of follow-on damage actions throughout the entire European Union. In Italy, after several legal actions having been launched by logistics associations and transport companies against the six sanctioned manufacturers, the Chamber of the Naples District Court specialised in business matters rendered the first judgment awarding damages in 2021.
Revival of the ‘claims assignment class action’ in German private antitrust enforcement (and beyond)
Corporate victims of anticompetitive practices by their suppliers regularly consider their possibilities to exercise their rights in the best interest of their company. On 13 July 2021, the Federal Court of Justice (Bundesgerichtshof) held that the ‘class action collection’ (Sammelklage-Inkasso) is permissible. Correcting a contrary trend followed by lower courts, the landmark AirDeal judgment of Germany’s supreme court fundamentally confirms the legality of the opt-in ‘assignment model’, i.e. the contractual transfer of claims for damages of numerous victims of the same infringement to a specialised third party for the purpose of bundling, analysis, and joint enforcement of these claims. This approach from a procedural economy perspective has become increasingly important all over Europe in recent years, especially for private antitrust cases due to a lack of effective collective redress mechanisms. In Germany, it has also been approved by a current reform of statutory law.