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European Court of Justice strengthens plaintiffs' rights in antitrust damages proceedings: no need for any activity on the market affected by cartel




Last Thursday the ECJ held in the case Otis et al. (C-435/18) on a reference for a preliminary ruling from the Austrian Supreme Court and again strengthened the rights of cartel victims. The request for a preliminary ruling concerns the right of indirectly injured persons who are not active as suppliers or customers on the market affected by a cartel to claim damages resulting from an infringement of cartel law. The European Court of Justice affirmed this last Thursday.
The Province of Upper Austria filed a lawsuit on the justification that it had paid increased subsidies for construction projects resulting from the cartel agreements. If the cartel agreement had not existed, the subsidies, calculated as a percentage of total construction costs, would have been lower. The difference could then have been invested at the average interest rate of federal loans, the applicant argues.
The request for a preliminary ruling is based on an action for damages brought by the Province of Upper Austria against several manufacturers of lifts and escalators, which were fined a total of EUR 992 million by the European Commission for their participation in a cartel agreement concerning the maintenance and installation of lifts and escalators in 2007.
Claim for compensation requires causal connection only
Again, the ECJ has underlined that any person can claim damages as long as there is a causal connection between the damage and a cartel prohibited pursuant to Art. 101 TFEU. There are no further requirements in the sense of a specific connection with the objective pursued by Art. 101 TFEU. The existence of a claim for damages therefore does not depend on the fact that the injured party is a supplier or customer on the market affected by the cartel. According to the ECJ, an increased subsidy amount disbursed by the injured party as a result of the cartel can therefore give rise to damage.
Whether the Province of Upper Austria suffered such loss, that is to say, whether there was a profitable possibility of investment, and whether the causal link between the damage and the cartel has been proved must be finally decided by the national court.
According to the ECJ, claims for damages can be justified if injured persons are not even active on the market affected by a cartel - as long as there is a causal connection between cartel and damage. That is in line with the Court's previous decision practice (e.g. Courage and Crehan, C-453/99, Manfredi, C-295/04 and recently Skanska, C-724/17). Even the national law of the member states cannot oppose this, because the plaintiff's claim already follows directly from Art. 101 TFEU the ECJ again underlined in its ruling. As a result, significantly more plaintiffs could claim damages for antitrust infringements in the future. So far, direct customers of the cartel members or customers of the customers have typically made such claims. In Germany, the legal requirement to be "affected" (cf. Sections 33 (1) and (3), 33a (1) Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB)) could be questioned in the future against the background of the decision. According to Section 33 (3) GWB, "competitors and other market participants" impaired by the infringement are affected. In the light of the most recent decision of the ECJ, even the broad wording of the GWB could still be too restrictive.
Decision ECJ Otis et.a. 12 December 2019, C-435/18
Decision ECJ Courage and Crehan 20 September 2001, C-453/99
Decision ECJ Manfredi 13 December 2006, C-295/04
Decision ECJ Skanska 14 March 2019, C-724/1

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