It is perfectly permissible for a victim of anti-competitive conduct such as a cartel to claim damages arising from such conduct. Such a claim for damages must be entertained by the courts even when the members of the cartel had no contractual link with the victim concerned, the Court of Justice of the European Union recently affirmed.

EU law considers as illegal all agreements, decisions and concerted practices which have the object or the effect of restricting competition in any particular market. This means that any agreement between competitors to, for example, in any way fix prices is illegal.

In a recent case which came before the CJEU, the European Commission imposed a fine on groups of companies for their participation in cartels involving the installation and maintenance of elevators and escalators in Belgium, Germany, Luxembourg and the Netherlands.

The cartel sought to guarantee for its members a higher price than that which could have been expected under normal competitive conditions. The Austrian authorities also imposed fines on some of these same undertakings for implementing the same cartel on the Austrian market.

The company ÖBB-Infrastruktur established in Austria bought elevators and escalators from a company which was not party to the cartel.

It then filed an action in the Austrian courts claiming from the members of the Austrian cartel, compensation for damages because of the fact that it had been charged a higher price by its suppliers than that that which it would have been charged had the cartel not existed.

The Austrian court proceeded to file a preliminary reference to the CJEU requesting guidance as to whether in this case the cartel members could be found liable for damages sustained by ÖBB even though the losses incurred by OBB were the result of a contract entered into with a supplier which was not party to the cartel and which was acting lawfully.

The CJEU observed that any person was entitled to claim compensation for losses suffered where there was a link between the damages being claimed and anti-competitive conduct on any particular market.

It affirmed that a cartel could have the effect of leading companies that are not a party to it to raise their prices in order to adapt themselves to the market price resulting from the cartel.

This is so since, often, the market price is one of the main factors taken into consideration by an undertaking when setting the price at which it offers its goods or services.

The Court proceeded to conclude that where it can be proven that a cartel, in view of the circumstances of the particular case and the specific aspects of the relevant market, could lead to higher prices being charged by all traders in the market in question – even those not party to the cartel – victims of this price increase must be permitted to claim compensation for loss sustained from the members of the cartel.

They can do this notwithstanding the fact that the victims had no contractual relationship with the members of the cartel.

As this judgment shows, the CJEU is never willing to close an eye to the illegal implications of anti-competitive conduct on any particular market.

It is clear that participants in such conduct must be ready to bear the consequences of their actions and the negative effects that such anti-competitive conduct leaves on the market in question.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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