Christian Ritz, Carolin Marx and Manuel Bogenreuther  ‘Prima Facie Evidence in Cartel Damages Litigation – Landmark Decision by the German Federal Court of Justice in the Rail Cartel Case’ (2019) Journal of European Competition Law & Practice 10(8) 491

This paper, available here, deals with a judgment of 11 December 2018 by Germany’s Federal Court of Justice’s Cartel Panel dealing with the applicability of the principle of prima facie evidence (in German ‘Anscheinsbeweis’) regarding causation of damage. Section II focuses on the law of evidence regarding competition damages in Germany. Under German law, each party bears the burden of proving all elements of any statutory provision on which they rely. For cartel damages cases, this means that a claimant asking for damages needs to prove: (i) an infringement of competition law, (ii) the existence of such damages and (iii) that the damages were caused by the infringing behaviour. This situation changed, as regards follow-on claims, as a result of the implementation of the EU Damages Directive. With the goal of ensuring that neither the burden nor the standard of proof render the exercise of the right to compensation practically impossible or excessively difficult, Article 17(2) of the Damages Directive…

Christian Kersting ‘Liability of sister companies and subsidiaries in European competition law’ (2020) European Competition Law Review 41 125

Traditionally, tort liability – which governs private competition enforcement – attaches to specific legal entities. However, liability for a competition infringement under European law attaches to undertakings, i.e. economic units that may comprise multiple legal entities. Increasingly, jurisdictions have relied on this latter approach also for assigning private liability for competition damages, and a similar approach even seems to have been endorsed by the European Court of Justice in Skanska. As a result, questions regarding which legal entities are liable for competition damages are increasingly coming to the fore, particularly as the answer is often crucial to determine whether certain courts (and countries) have jurisdiction over the claim. Under EU competition law, an undertaking encompasses every entity engaged in an economic activity. An undertaking may consist of several legally independent entities, provided that together they form an economic unit. Within the scope of this economic unit, an innocent parent company is generally liable for the competition infringements of its subsidiaries….

Andrew Leitch ‘Skanska: are jurisdiction challenges now an impossible undertaking?’ (2019) Competition Law Journal 18(3) 97

This paper is available here. Damages claims which follow on from European Commission (“Commission”) cartel decisions are, by their very nature, multinational in scope, with addressees of a Commission decision often domiciled across various EU Member States and even further afield. As multiple national markets are often affected by the anticompetitive conduct, potential claimants are also often domiciled across the EU and beyond. This can present potential claimants with a choice as to the jurisdiction in which they wish to pursue their damages claims, with the United Kingdom, Germany and the Netherlands emerging as the most popular jurisdictions. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. The ECJ’s Skanska judgment relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against…

Case review of Apple v. Pepper  Harvard Law Review (2019) 33 382

Since Illinois Brick, standing to sue for violation of US federal antitrust law has been reserved exclusively to those parties who purchased directly from price-setting monopolists or cartelists. Indirect purchasers, who transacted with these direct purchasers rather than with the monopolist itself, had no standing, even if the direct purchaser “passed on” the full cost of the monopolistic overcharge to them in the form of higher prices. The Court prohibited these pass-through arguments because it judged itself ill suited to efficiently determine what parts of an overcharge are passed on at any given stage in the chain of distribution. The Court also worried that allowing pass-through arguments would undermine deterrence, as indirect purchasers, who could not sue as effectively as direct purchasers, would be able to claim a portion of what would previously have gone to direct purchasers in a successful suit. Last year, however, the Supreme Court in Apple v Pepper held that app purchasers could sue Apple for…

Herbert Hovenkamp ‘Apple vs. Pepper: Rationalizing Antitrust’s Indirect Purchaser Rule’ (2020) Columbia Law Review Forum 120(1) 14

The simplest measure of loss caused by an antitrust infringement is the amount of the overcharge caused by a conduct. However, customers of the infringing party may be able to pass on this overcharge to their own customers, which means that indirect purchasers may also suffer loss. The US – unlike other countries – typically limits the ability to claim damages to direct purchasers for the amount of the relevant overcharge (typically trebled). In Apple Inc. v. Pepper, the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s App Store because of an antitrust violation could sue Apple for damages because they were “direct purchasers”. The paper, available here, argues that, working within the context of applicable rules, the majority reached the right conclusion. At the same time, and while this judgment eliminates some of the irrationalities of the indirect purchaser rule as it has been applied, it hardly adopts a definite solution to the…

Andrew Gavil ‘Consumer welfare without consumers? Illinois Brick after Apple v Pepper’ (2019) Journal of Antitrust Enforcement 7 447

This essay, available here, examines the recent Apple v Pepper decision with a focus on two issues: its seeming rehabilitation of compensation principles and its approach to evaluating antitrust damages. Together, these two aspects of the Court’s reasoning may undermine the continued vitality of Illinois Brick’s decision not to allow indirect purchasers to claim for damages. The author argues that, although the Supreme Court formally retained Illinois Brick, the Court’s logic in explaining the nature of damages that flow from antitrust violations will prove hard to contain and difficult to reconcile with Illinois Brick’s simplistic conception of ‘pass-on’. That, in turn, will likely alter how parties litigate antitrust damage claims in ways likely to invite future challenges to Illinois Brick. Apple v Pepper also may have reopened long-simmering debates in the USA about how best to balance the twin remedial goals of deterrence and compensation. Given the evolution over four decades of a fairly intricate federal-state, public–private enforcement ecosystem in the USA,…

Simmon Vande Walle ‘Private enforcement of antitrust law in Belgium and the Netherlands – is there a race to attract antitrust damages actions?’ (2018) in Pier L. Parcu, Giorgio Monti and Marco Botta (eds.) Private Enforcement of EU Competition Law (Elgar, 2018) 118

Since the Belgian and Dutch legal systems are relatively similar, one would expect similar levels of antitrust litigation. However, this is not the case, particularly as regards follow-on claims. This article, available here, tries to find explanations for this divergence. It argues that the boom in follow-on damages actions in the Netherlands can be explained by the receptive attitude of Dutch judges and lawyers to follow-on damages actions, in line with their receptive approach to complex litigation. Belgian courts, by contrast, have been less receptive to follow-on actions, probably because Belgian judges have a higher caseload than Dutch judges do. This represents something of a paradox: the Belgian courts are more accessible and attract more regular, run-of-the mill litigation but, precisely because of this, they are less receptive to new types of litigation such as follow-on damages actions, regardless of the benefits that these actions may bring to the economy. Section 2 presents data on private antitrust enforcement in Belgium and the…

Mario Siragusa and Alessandro Comino on ‘Private Antitrust Enforcement in Italy’ (2019) CPI June

Italy has a long-standing tradition of private antitrust enforcement. This piece, available here, provides an overview of Italy’s private enforcement regime, focusing on developments brought about by Italy’s implementation of the EU Damages Directive in early 2017. This reform introduced a number of substantive and procedural provisions to facilitate damages claims by victims of antitrust infringements. As a result, the authors expect private antitrust litigation in Italy, and particularly follow-on actions, to increase. The note begins with a description of how private enforcement changed following the implementation of the EU Damages Directive. The Italian legislator took advantage of the transposition of the Directive to reform the rules regarding disclosure of evidence. The Italian system already contained a provision regulating disclosure (Article 210 of the Civil Procedure Code). However, this provision required the party seeking disclosure to show that the evidence to be disclosed was necessary and indispensable for the case. In addition, the courts interpreted this provision narrowly as allowing them…

Lukas Rengier ‘Cartel Damages Actions in German Courts: What the Statistics Tell Us’ (2019) Journal of European Competition Law & Practice 1,

Germany is commonly mentioned as one of the three preferred jurisdictions for cartel damages actions in Europe, next to England and the Netherlands. The level of private enforcement is indeed quite high in Germany, and its growth is accelerating. Up until the end of 2018, there had been 119 judgments by German courts concerning cartel damages actions— 91 by district courts (i.e. first instance courts), 24 by regional courts (i.e. second instance courts), and four by the Federal Court of Justice. Many more lawsuits are currently pending—there is no public record, but the author counts approximately 650 pending cases in district courts alone. This article, available here, takes a closer look at the practical approach adopted by German courts to cartel damages claims by conducting a statistical analysis of these 119 judgments. Section I looks at the history of cartel damages actions in Germany. Cartel damages actions in Germany can be filed before 27 district courts. Seventeen higher regional courts deal with…

Miguel Sousa Ferro ‘The Playful State of Antitrust Damages Claims in the EU’ (2019) CPI September

This short note, available here, looks at the main developments in the two years since the European Damages Directive came into force. A first set of developments relates to the increasing case law of the European courts on private enforcement.A noticeable trend is a significant increase in the number of preliminary references to the European courts. One consequence of these appeals thus far is to lay bare how great the impact of EU law is on substantive and procedural national rules relating to competition damages actions. These preliminary references also showed the Court to be a friend to private enforcement and a defender of the effectiveness of EU law. This is most apparent in the recent Skanska decision. Strictly speaking, Skanska was a case concerning solely the liability of economic successors and parent undertakings for damages arising from a competition infringement by a different legal entity. The underlying question was whether the concept of undertaking that applies in public competition enforcement…