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.
German Federal Court of Justice confirms factual assumption of harm in case of anticompetitive information exchanges and clarifies scope of liability in multi-product cartels
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.
Trucks cartel: New CJEU landmark judgement empowers victims of antitrust infringements with the right to request ex novo documents, created by the defendants (C-163/21, PACCAR e.a.)
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.
Assessing the compatibility of seemingly contradictory statistical evidence in the case of damage estimations (reflections on the article written by Peter Bönisch and Roman Inderst)
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.
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.
Interest on cartel damages
Suppose that in 2002, a cartel caused EUR 1,000 in damages to a victim. Is the victim 20 years later entitled to only EUR 1,000? Of course not. The amount must be adjusted for interest. EU law is clear on this point, along with the requirement that interest must accrue as of the time the damage occurred. Other modalities, however, are left to national laws. When working out interest in any concrete case, several common issues should be considered. The following attempts to foster systematic treatment of this interesting (sic!) topic.
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.
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.
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 […]
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 […]