Decoding Transaction Data in Private Competition Law Damage Litigations: Efficient data management in legal proceedings
In private damage litigations, the effective management of transaction data stands as a pivotal element in building compelling cases. Transaction data plays a central role in the substantiation of a claim, establishing causation, quantifying damages, and pre-emptively addressing defence strategies.
The intricacies of transaction data management present unique challenges, from handling extensive paper-based evidence to ensuring data relevance, integrity, and compliance with data protection regulations. This article explores the complexities of transaction data management within competition law litigations, offering insight into best practices and the evolving landscape of data management technologies.
Effective enforcement of cartel damage claims through the assignment model: The preliminary ruling procedure before the CJEU in Case C-253/23 (ASG) – A Comment
Following a request for a preliminary ruling from Germany, the CJEU has to assess the availability of the ‘assignment model’ to cartel victims. Private enforcement of competition law in the EU is essentially driven by actions bundling claims for damages assigned by a multitude of victims to a specialised company for joint assessment and enforcement. The question is whether limitations to the assignment model under national law can survive an assessment under EU law.
Tribunal Supremo on trucks cartel, judicial estimation after Tráficos Manuel Ferrer: Judges can estimate without prior disclosure, judicial estimate of 5% overcharge confirmed
In a bundle of 15 cassation judgments, the Tribunal Supremo, the highest civil court in Spain, rules on important questions concerning the ability of the judge to estimate the damage, the need for prior inter partes disclosure, proportionality, and standards for economic expert opinions. The Tribunal does so against the background of the European trucks cartel, the same case that prompted the preliminary ruling in Tráficos Manuel Ferrer. The Tribunal largely upholds the findings of the appellate courts and strengthens the ability of judges to estimate damage. The court also rules, among other questions, on the accrual of interest and limitation.
Private Enforcement of the EU Digital Markets Act: The way ahead after going live
As of 2 May 2023, the DMA provisions started to be applied as an innovative ex-ante regulation targeting ‘gatekeepers’ in the digital market. Provided that private enforcement plays a central role in the effective application of the DMA, this article provides significant insights in this regard. In the absence of a harmonization act like the EU Antitrust Damages Directive, key principles rooted in EU law and CJEU case law, together with rules progressively proposed under national law for the protection of individual rights of platform users, represent the current state of DMA private enforcement, paving the way for the future.
Challenges in Quantifying Private Antitrust Damages: Addressing Data Availability and Reliability
This article explores the complexities surrounding the quantification of damages and the issue of data asymmetry in private antitrust damage actions in Europe. It delves into the challenges claimants face in quantifying the actual harm caused by anticompetitive behaviour. The article also discusses the role of disclosure rules in promoting fair access to evidence and proposes potential solutions to mitigate the information disparity between claimants and defendants.
Tráficos Manuel Ferrer – a warning to claimants and defendants alike
Shortly after the publication of the Tráficos Manuel Ferrer judgment by the Court of Justice of the European Union (CJEU) in response to a request for a preliminary ruling (16 February 2023), the judge from the Valencia court who had referred the questions to the CJEU delivered his judgment in the same case (10 March 2023). This blog post analyses the key points of the Valencia court judgment concerning economic expert reports.
Connor and Lande data: median recovery rates suggest that cartel effects can be five times higher than cartel fines
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: Portuguese competition court grants a 15.4% compensation and applies its national law in line with recent EU case law
On 6 November 2022, the Portuguese Competition, Regulation and Supervision Court of Santarém rendered a key judgment in relation to damages proceedings against participants in the European Trucks Cartel. The Court addressed key points, such as the standard of proof, limitation periods, and net price effects in a comprehensive EU case law state of play-based interpretation of national law. Granting the 15.4% overcharge identified in the claimant’s expert report and rejecting the defendant’s “no damage” argumentation, this judgment will have a positive impact beyond the Trucks Cartel case.
Portugal Competition Authority sanctions Energias de Portugal (EDP) €48m for abuse of its dominant position in the secondary electricity reserve market
On 17 September 2019, the Portuguese Competition Authority fined the electricity company EDP €48 million for abusing its dominant position in the market for secondary electricity reserve services in Portugal between 2009 and 2013 by manipulating its electricity offer from its generating units. Portugal Competition Authority sanctions Energias de Portugal (EDP) €48m for abuse of its dominant position in the secondary electricity reserve market The secondary balancing reserve guarantees the permanent balance in the national electric system and can be provided only by the power plants equipped for that purpose. In 1995, to attract investment in the power plants that the country needed, the State launched international tenders, offering investors Energy Acquisition Contracts, known as CAE. When these CAE were signed, return rates were set for the entirety of their duration (8.5% for the 33 EDP plants). Following European legislation changes, Decree-Law No. 240/2004 was approved, which determined the early termination of all long-term CAE signed in 1996. To avoid paying producers the compensation provided for in the CAE, the Portuguese State created the Contractual Equilibrium Maintenance Cost mechanism (CMEC), which determined that the plants whose CAE contracts were terminated before the due date would be paid the difference between the CAE amount and the revenue they might have obtained in an open market. Between 2009 and 2013, EDP limited the offer from its generating units subject to the CMEC regime, while increasing the offer from its units in the open market, thus being paid twice to the detriment of consumers. The increase in wholesale energy prices during the infringement period was estimated in the decision at €94.8 million, excluding inflation and statutory interest. This infringement was conducted to the detriment of all consumers who were resident in mainland Portugal while the anti-competitive practices in question took place. Your contacts: Akos Reger Jakob Rüggeberg