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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

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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.

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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.

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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.

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Trucks cartel: AG Pitruzzella’s opinion on civil liability of subsidiaries for competition law infringements of the undertaking

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.

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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.

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Les dommages et intérêts dans les affaires de position dominante : l’exemple de Google Shopping

Si une multitude d’actions en réparation sont régulièrement déposées devant les juridictions de divers pays de l’Union européenne en rapport avec l’article 101 TFUE (pensez, par exemple, à l’abondance des litiges contre les constructeurs de camions), il n’en va pas encore de même pour les affaires d’abus de position dominante. Bien que la Directive régissant

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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

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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

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Private damages in dominance cases: the example of Google Shopping

While a plethora of damages claims are regularly filed in front of jurisdictions in various countries of the European Union related to Article 101 TFEU (think, for example, the abundance of litigation against truck manufacturers), the same is not yet true for abuse of dominance cases. Notwithstanding that the Damages Directive is equally applicable to

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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

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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

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Actions for damages and unlawful State Aids

Under EU law, State aids are in principle prohibited unless authorised by the European Commission. In cases where Member States grant a State aid to an undertaking without obtaining the prior authorization of the European Commission, competitors of the beneficiary of this unlawful State Aid may obtain damages for the financial harm they may suffer

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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

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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’).

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Amsterdam Court of Appeal applies Cogeco principles on limitation periods and confirms validity of assignments in Sodium Chlorate cartel case

Introduction On 4 February 2020 the Amsterdam Court of Appeal in a landmark judgment ruled that the claims brought by CDC against Kemira Chemicals Oy (‘Kemira Chemicals’) under Finnish, Swedish and Spanish law are not time-barred. The Court of Appeal is the first national appeals court to apply the Cogeco principles on limitation periods as formulated in 2019 by

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CJEU finds national limitation periods in conflict with the EU law principle of effectiveness

On 28 March 2019 in Case Cogeco C‑637/17 the CJEU provided guidance on the application ratione temporis of the EU Damages Directive 2014/104/EU (Directive) and stressed the importance of the principle of effectiveness for damages actions for breaches of EU competition law. The CJEU confirmed that a case-by-case analysis is required in order to assess whether the Directive is

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CJEU confirms the right of all cartel victims to obtain redress in Elevators and Escalators cartel case

Introduction The year 2019 was marked by a number of landmark judgements of the Court of Justice of the European Union (‘CJEU’) in the field of private enforcement such as Skanska, Cogeco and Tibor-Trans. On 12 December 2019 the CJEU rendered its judgement in Case-435/18, Otis Geselschaft m.b.H. e.a., (Austrian Elevators and Escalators). Following the Opinion of Advocate General (‘AG’) Kokott, it

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Collective or Class Actions and Claims Aggregation in the EU: the Claimant’s Perspective

An extract from GCR’s Private Litigation Guide – First Edition. The whole publication is available to purchase on GCR’s website. Private enforcement of competition law in Europe has in the past decade been driven in large part by the aggregation and  enforcement of damages claims brought by multiple companies affected by the same competition law infringement

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The Spanish paper envelopes cartel: Compensation over 40 years later

In 1977, Spain celebrated its first democratic elections in the aftermath of the transition from dictatorship to full democracy. The leading five paper envelope producers used the occasion to create and establish one of the most harmful cartels in Spanish Public Procurement history. Before the elections took place, the transition government were required to buy

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AG Kokott: Confirming the Wide Scope of Antitrust Damage Claims

Introduction Advocate General (AG) Kokott is one of the most influential and experienced members of the European Union’s judiciary. Recently, she handed down a landmark opinion in relation to the Austrian Elevators and Escalators cartel damages case on the scope of damages claims that can be brought by claimants. The key issue in Austrian Elevators and Escalators revolved around

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Landmark judgment by the EU Court of Justice on the interpretation of the place of harmful event under Regulation Brussels I bis for the determination of alternative grounds of jurisdiction in pan-European cartel damages cases

With its judgment of 29 July 2019 in Case C-451/18, Tibor-Trans (‘Judgment’), the EU Court of Justice (‘CJEU’) clarified the competence of national courts to hear damage actions relating to pan-European infringements of Art. 101 TFEU under Regulation 1215/2012 Brussels I bis (in short ‘Brussels I bis’). The CJEU specified that victims of illegal cartels can lodge an action for

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Factors to consider when taking a cartel damages action

As private enforcement of competition law continues its upward trend potential claimants must consider many factors before deciding to pursue a claim for compensation against their suppliers. EU Directive 2014/104 has contributed to the increased awareness of the right to compensation across Europe and there has been a sharp surge in the number of actions being brought

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EU Directive strengthens competition authorities of the Member States to be more effective enforcers of EU competition law

On 11 December 2018, Directive (EU) 2019/1 of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market was adopted. The Directive aims to enable national competition authorities (NCAs) to be more effective enforcers of EU competition

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The Elevators & Escalators cartel revisited in light of the Skanska case: on the impact of the effectiveness principle on the private enforcement of EU competition law

On 14 March 2019, the CJEU handed down a landmark judgment in the Skanska case. Following the opinion of AG Wahl, the CJEU found that the competition law concept of ‘undertaking’ is applicable as well in actions for damages for breaches of EU competition law. Consequently, each company that is part of the infringing economic unit can be

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AG Wahl advises the CJEU following preliminary questions in a Finnish cartel damage case on the relationship between European law and domestic law in the private enforcement of competition law

In a recently published opinion in a Finnish cartel damage case, Advocate General (AG) Wahl discussed the important issue of the relationship between European competition law and private liability law (opinion delivered on 6 February 2019 in the case C-724/17). According to AG Wahl, liability for a breach of European competition law follows directly from European competition

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Scope of parental liability in the Finnish asphalt cartel case

The competition law community is awaiting the preliminary ruling by the European Court of Justice (ECJ) in relation to questions posed by the Finnish Supreme Court in the follow-on damages proceedings brought in the Finnish asphalt cartel case by the City of Vantaa against Skanska Industrial Solutions Oy, NCC Industry Oy and Asfaltmix Oy (Case

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Review of economic publication ‘Cartel Dating’

The recent publication on the determination of the period of actual collusive effects by Boswijk, Bun, & Schinkel (“BBS”) is rather timely given the upsurge in private antitrust enforcement across Europe since the introduction of the EU Damages Directive (“Directive”) and its subsequent implementation into Member State law. Background – The Right to Full Compensation The Directive acknowledges the

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A new specialised court in town: the Netherlands commercial courts

The Netherlands is an established jurisdiction for bringing European follow-on damages procedures. Examples include the Sodium Chlorate, Paraffin Wax and Truck cartel cases. Cartel-damages cases are perfect examples of international disputes in which either the claimant or defendant, or both parties, are foreign companies coming from several European Member States. To illustrate by an example, the Sodium Chlorate case started

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Jurisdiction of national courts in case of follow-on damages claims

The jurisdiction of the national civil court is often questioned in cases concerning EU-wide follow-on damages claims. In its judgment of May 2015, the European Court of Justice (ECJ) in Case C-352/13 – CDC HP confirmed that the national court under the Brussels I Regulation (Brussels I) is in particular competent to hear and adjudicate the case

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Dutch Court accepts jurisdiction for damage claims of non-EU claimants and provides guidance on the interpretation of limitation periods

On 27 June 2018 the Dutch District Court of East Brabant rendered an interim judgment (ECLI:NL:RBOBR:2018:3170) on the limitation periods of damage claims initiated by a Turkish company Vestel Ticaret A.Ş. (Vestel) against various international companies which were members of the cathode ray tubes cartel (CRT Cartel). The Dutch Court accepted jurisdiction of the case as one

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TenneT vs ABB: The case and discussion about the passing-on defence continues

The discussion on the admissibility of the passing-on defence in the dispute between TenneT and ABB continued with the judgment of the Court of Appeal Arnhem-Leeuwarden (Gelderland) of 29 May 2018 (ECLI:NL:GHARL:2018:4876). The procedure concerns a follow-on damages action of the Dutch state-owned grid operator TenneT against ABB – and in a different procedure against

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The EFTA Court clarifies the application of limitation periods to antitrust claims resulting from EEA competition infringement

The EFTA Court with its judgment of 17 September 2018 (reference no. Case E-10/17 – Nye Kystlink AS and Color Group AS and Color Line AS) has confirmed that lawsuits against antitrust offenders can face deadline restrictions, but this should not make them “impossible or excessively difficult”. The EFTA Court stated that the compliance of national rules

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The compatibility of Irish rules on champerty and maintenance with the EU damages directive

On 17 February 2017, EU Directive 2014/104 (the “Directive”) was transposed into Irish law by the European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017 (the “Implementation Act”).  As widely acknowledged, the implementation of the Directive aims to facilitate the enforcement of claims for damages resulting from infringements of competition law before the courts of EU

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EU proposes new whistleblower safeguards

On 23 April 2018, the European Commission announced its intention to implement new EU-wide standards to safeguard whistleblowers. The Commission’s proposals aim to strengthen existing laws by increasing the protection of whistleblowers who report violations of EU rules, including breaches of competition law. According to the Commission the proposed reforms will establish “safe channels” which whistle-blowers can

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German Federal Court of Justice hands down landmark judgment in Cement Cartel Case

In 2005, Germany implemented legislation determining the suspension of limitation periods for damage claims during the investigation of a competition authority. However, since the adoption of the new provision it has been unclear whether the law applies on damage claims which arose before the entry into force of the new suspension provision (1 July 2005),

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First Spanish Judgments in trucks cartel follow-on actions

The trucks cartel sanctioned by the European Commission in July 2016 has provoked a flood of individual claims all over Spain. They were filed by all types of transport and logistics companies against the six sanctioned manufacturers, their Spanish subsidiaries and even their financial services providers. Apart from several decisions on jurisdiction and access to

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