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.
As of 2 May 2023, the DMA provisions started to be applied as an innovative ex-ante regulation targeting ‘gatekeepers’ in the digital market. Provided that private enforcement plays a central role in the effective application of the DMA, this article provides significant insights in this regard. In the absence of a harmonization act like the EU Antitrust Damages Directive, key principles rooted in EU law and CJEU case law, together with rules progressively proposed under national law for the protection of individual rights of platform users, represent the current state of DMA private enforcement, paving the way for the future.
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.