European Cartel Damage Alliance e.V.
The antitrust lawyers within the network have several years of experience in the field of enforcement of cartel damage claims
Private Enforcement & cartel damages claims
CARTEL DAMAGES COMPENSATION
Cartel damages claims are the counterpart to antitrust fines by competition authorities. While the latter aim at punishing infringements of competition law, actions for damages aim mainly at damage compensation. Nonetheless, their detterent effect shouldn‘t be underestimatet.
Antitrust damages claims are usually enforced (out of court or in court) follwing a binding decision of a competition authority. At the level of the European Union it is the European Commission, which every year fines various antitrust infringements of different nature and scope.
EVERYBODY’S RIGHT TO COMPENSATION
The European Court of Justice confirmed in the past that any individual has the right to full compensation for the harm caused to it by an infringement of antitrust rules (i.e. compensation of actual loss, loss of profit and interests). Since then the rights of cartel victims have constantly been strengthened by case-law and the legislator. An important milestone was the the Directive on antitrust damages actions (2014/104/EU). Every claim should be carefully considered both legally and economically before a lawsuit.
ECDA/FORIS - 1st Competition Day
New developments in the field of private enforcement of competition law and litigation funding for companies in Europe
In view of the Corona virus situation our ECDA/FORIS 1st Competition Day took place online on 26 August 2021 (see agenda). However, the online format did not hinder our excellent speakers to hold passionate speaches about the future of the private enforcement of competition law. The participants have been welcomed by Prof. Hanns-Ferdinand Müller, CEO of the litigation funder FORIS AG and Andreas Christensen, partner at the Danish ECDA member Horten. His colleague, Marie Lovbjerg, senior attorney at Horten, moderated the followin speaches. Prof. Dr. Maik Wolf conveyed in his keynote speech the message, that the succes of atitrust dammage claims will in the future depend even more than in the past on an effective public enforcement of competition law. Nataliia Ivanytska, lawyer from the French ECDA member De Gaulle Fleurance & Associés, Dr. Michał Będkowski-Kozioł from the Polish ECDA member Kochanski & Partners and Dr. Holger Hoch, partner counsel from the German ECDA member BBH presented the challenges of the private enforcement of competition law in their respective countries and talked about the benefits for their clients of their mutual cooperation within the network and with the litigation funder FORIS AG. Last but not least, Frederick Iwans, CEO of the FORIS AG, stressed in his closing presentation why litigation funding in cartel damage cases makes sense and which litigation funding cases and strategies are possible. All presentation files are available here:
We thank all speakers and participants for their interesting contributions and questions and are looking forward to our 2nd ECDA/FORIS Competition Day next year, hopefully in person!
Grounds of the judgement by the German Federal Court of Justice in the trucks cartel case
On 7 January 2021, the German Federal Court of Justice (BGH) finally published the long awaited grounds of its judgement of 23 September 2020 in the trucks cartel case. With this judgement the BGH has set aside the judgement by the court of appeal, namely the OLG Stuttgart, which had confirmed the first instance judgement awarding cartel damages to the claimant. The case was referred back to the court of appeal for a new decision. It is, however, important to note, that although the BGH criticized the OLG Stuttgart for having assumed a high probability of a damage a little too quickly, it also confirmed its reasoning in many aspects.
First of all, the BGH confirmed that the object of the truck cartel was not just an exchange of information, but also specific list price agreements and agreements on the transfer of costs for the EURO standard technologies. Secondly, the court affirmed, that the actual impact of the cartel is irrelevant for whether the truck buyers are affected by the cartel. And thirdly, the BGH agreed with the OLG Stuttgart, that also truck purchases in 2011 were affected by the cartel. Furthermore, the BGH confirmed that the statute of limitations was halted early on (i.e. since the Commission's raids in 2011). And finally, it stated, that increased purchase prices were not unlikely because the agreements related primarily to list prices. The assumption of a price effect of the agreements is according to the BGH also not ruled out by the damage appraisals submitted by the truck manufacturers and the damage was not eliminated by a pass-on of the costs to the clients of the claimant (a construction company).
Nevertheless, the BGH stressed, that the burden of proof regarding a damage remains with the claimant. The judge has to - based on a permissible presumption of damage - consider all circumstances of the individual case and cannot assume a high probability of a damage in an abstract way. Continuing competition and significant shifts in market shares may have to be taken into account in the overall assessment of possible price effects. Which impact they have on the result, however, is a question of the individual case, which the OLG must according to the BGH re-assess. By this the BGH disagreed rather with the way the court of appeal reached its decision than with the result of its decision making process. Ultimately, the decisions strengthens cartel victims seeking compensation in Germany, especially those damaged by the trucks cartel.
ECDA coordinator: Dr. Anna Lesinska-Adamson
Phone +49(0)30 611 28 40-10
European Cartel Damage Alliance e.V. (ECDA)
10179 Berlin / Germany