On 11 December 2019, Dr. Pascal Hildebrand attended an ICN-webinar on current issues concerning the enforceability of antitrust damages claims.
Dr. Hildebrand covered three topics: general developments in cartel damages in Germany and other EU member states, recent developments in German case law occurring since the judgement of the German Federal Court of Justice (BGH) in the rail cartel case, and the significance of the economic presumptions set out in the Directive on Antitrust Damages (2014/104/EU).
The participation in this ICN-webinar followed Dr. Hildebrand’s talk at the ICN cartel workshop 7th-10th of October 2019 in Brazil. The ICN Cartel Working Group is a working group within the International Competition Network (ICN) and was founded specifically to intensify global cooperation in matters of antitrust law application.
To begin, Dr. Hildebrand gave an overview of the development of cartel damages cases. In recent years, a significant increase in the number of European cases has been observed. These changes can be traced back to the Directive 2014/104/EU and the European Commission’s decision to fine the truck cartel. However, to determine damages in the majority of the proceedings judges still use simple mathematical approaches without the use of econometric methods, such as regression analyses or simulation models that are advocated for in the EU Commission guidelines on how to estimate cartel damages. Dr. Hildebrand elaborated that it is likely that in the future, econometric analyses will be used more in court proceeding, in Germany and the EU.
Dr. Hildebrand then discussed the decision of the BGH in the rail cartel, which caused e.g. damage to Deutsche Bahn and various regional railways. This decision is highly relevant in German law, as the BGH clarified that the prima facie assumption of a cartel damage is not tenable for every type of cartel. In practice, this judgement leads to an increase in economic expert submissions performing analyses with a focus on the existence of a cartel in general. The judgement has thus strengthened the importance of economic experts in German court proceedings.
Finally, Dr. Hildebrand discussed the basic assumptions of the EU Directive on Antitrust Damages. According to the Directive, it can be assumed that cartels lead to damages, reflected in the form of anti-competitive effects. Such an economic presumption is not only documented by scientific research results. The assumption also makes sense as it promotes the effectiveness of cartel damage enforcement in general. However, the amount of damages cannot be derived from this presumption.
The type of analysis regarding the detection of causal links between a cartel and the damages is still left to the national jurisdiction of EU member states.
In summary, a recent change in the enforcement of antitrust damages claims can be observed, leading to an increased awareness of economic analyses in the courts, as well as significantly higher demands on the scope and complexity of competitive economic analyses. EE&MC is of the opinion that this development promotes a more thorough assessment of competition economic expert analysis by the courts.
For more information, please visit: https://www.internationalcompetitionnetwork.org/working-groups/cartel/