Proving Antitrust Damages in Jurisdictions Outside the United States

• Pages: 327-351

CHAPTER 11

PROVING ANTITRUST DAMAGES IN

JURISDICTIONS OUTSIDE THE UNITED STATES

This chapter discusses issues relating to the determination of antitrust

damages in jurisdictions outside the United States. Most major economies

have their own competition laws that may require the determination of

antitrust damages as a result of anticompetitive behavior of companies. In

this regard, more than one-third of the members of the World Trade

Organization maintain their own competition laws and enforcement

regimes, including Australia, Brazil, Canada, China, the European Union

(individually and collectively), Japan, Mexico, the Russian Federation,

and South Africa.1

The discussion provides a brief overview of notable issues in proving

damages in competition claims in the European Union and Canada,

highlighting some of the similarities and differences that are found across

jurisdictions. A full discussion of the requirements for proving antitrust

damages for all countries is beyond the scope of this volume.

A. European Union

The right to claim damages for infringements of EU competition law

exists under the national laws of the EU Member States as a result of the

direct effect of Articles 101 and 102 of the Treaty on the Functioning of

the European Union (TFEU),2 which, in broad summary, prohibit

anticompetitive agreements between undertakings and abuses by

undertakings occupying a dominant position on a relevant market, and

must be applied by the national courts.

1. Document of the Worki ng Group on the Interaction between Trade and

Competition Policy, Overview of Members’ National Competition

Legislation, WT/WGTCP/W/128/Rev.3 (Nov. 27, 2003), available at

http://www.wto.org/english/tratop_e/comp_e/wgtcp_docs_e.htm.

2. Consolidated Version of the Treaty on the Functioning of the European

Union arts. 101-102, Sept. 5, 2008, 2008 O.J. (C 115) 47 (effective Dec. 1,

2009) [hereinafter TFEU]; Case 127/73, Belgische Radio en Televisie and

Société Belge des Auteurs, Compositeurs et Éditeur s (BRT) v. SV

SABAM and NV Fonior, 1974 E.C.R. 51, ¶ 16 (Eur. Ct. Justice); Case C-

557/12, Kone AG and others v. ÖBB-Infrastrukt ur AG, [2014] All E.R. (D)

97 (Jun), ¶ 20 (Eur. Ct. Justice).

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328 Proving Antitrust Damages

Thus, in its seminal judgment in Courage v. Crehan,3 which

confirmed the right of individuals and companies to seek private redress

for the harm caused to them by infringements of EU competition law, the

Court of Justice of the European Union (CJEU) held that:

As regards the possibility of seeking compensation for loss caused by a

contract or by conduct liable to restrict or distort competition, it should

be remembered from the outset that, in accordance with settled case-law,

the national courts whose task it is to apply the provisions of Community

law in areas within their jurisdiction must ensure that those rules take

full effect and must protect the rights which they confer on individuals.

The full effectiveness of Article [101] of the Treaty and, in particular,

the practical effect of the prohibition laid do wn in Article [101](1) would

be put at risk if it were not open to any individual to claim damages for

loss caused to him by a contract or by conduct liable to r estrict or distort

competition.

Indeed, the existence of such a right strengthens the working of the

Community competition rules and discourages agreements or practices,

which are frequently covert, which are liable to restrict or distort

competition. From that point of view, actions for damages before the

national courts can make a significant contribution to the maintenance of

effective competition in the Community.4

Since Courage v. Crehan, and the subsequent judgment of the CJEU

in Manfredi v. Lloyd Adriatico Assicurazioni,5 which confirmed the

approach in Courage v. Crehan and clarified that the right to damages for

a breach of EU competition law must be subject to rules no less favorable

than those governing similar domestic actions, the number of cases in EU

national courts in which parties have sought to claim compensation for

competition law damage has steadily increased.

However, the variation between the rules in different EU Member

States applicable to such claims has led to a certain amount of “forum

shopping.” Claimants have sought to initiate their claims in the jurisdiction

that they believe to be most favorable to their claim, even if that is not the

jurisdiction most obviously concerned by the anticompetitive conduct in

question. The European Commission (Commission) estimated in 2013 that

“only 25% of antitrust infringements found by the Commission in the last

3. Case C-453/99, Courage Ltd v. Bernard Crehan, 2001 E.C.R. I-6297, (Eur.

Ct. Justice) [hereinafter Courage].

4. Id. At 25-27.

5. Joined Cases C-295/04 & C-298/04, Vincenzo Manfredi v. Lloyd Adriatico

Assicurazioni SpA, 2006 E.C.R. I-6619 (Eur. Ct. Justice).