chevron-down Created with Sketch Beta.


How European Courts Estimate Cartel Damages

Thomas Funke

How European Courts Estimate Cartel Damages
Nora Carol Photography via Getty Images

European courts awarded cartel damages in a record number of cases in 2023. The European trucks cartel in particular motivated large numbers of corporate claimants to seek damages individually or collectively. Even in the absence of treble damages and with limited options for collective actions, cartel victims increasingly reap the benefits of pursuing claims in the courts of the EU and the UK.

The EU Damages Actions Directive introduced essential rules for antitrust litigation in Europe in 2014. Both direct and indirect purchasers have right of standing, there is a rebuttable presumption that cartels cause harm, EU member states need to ensure effective regimes for claiming compensatory damages. As cartel investigations and follow-on damages actions take years or even decades, the accrued interest can be so significant that the original damages award is practically doubled. But the details vary significantly - each EU member state decides on the level of interest that can be claimed, discovery rules are only partially harmonized, rules on opt-out collective claims differ significantly.

Despite continued differences in the legal regimes and local traditions of civil procedure, courts in different EU member states and the UK are applying similar sets of methodologies to award damages and deal with an unprecedented number of antitrust litigation cases. Traditionally, average overcharges of 12% (plus interest) have been identified. More recently, the following approaches have been taken:

  • Liquidated damages: The German Supreme Court confirmed the effectiveness of a liquidated damages clause for cartel damages of up to 15%. In the event the contract goods or services were found to have been the object of a cartel, a cartel effect of 15% is presumed unless either party to the supply agreement containing the liquidated damages clause can demonstrate a deviating cartel effect. Along similar lines, trial courts in Italy and a trial court in Dortmund (Germany) have awarded cartel damages reflecting an overcharge of 15%.
  • Statutory presumption: The laws of some EU member states even include a rebuttable presumption for a certain cartel effect - in Hungary as well as in Latvia there is a legal presumption of a 10% overcharge; Romania implemented a presumption of a 20% overcharge; Germany is considering a similar provision in the context of its 12th antitrust reform act.
  • Broad axe in the absence of compelling expert reports: Some plaintiffs have filed actions without submitting an individual economic expert report. These plaintiffs have often argued that the cost of instructing economists to assess the claim would be disproportionate to the value of their claim. They frequently point to meta-studies according to which cartels typically result in overcharges in excess of 15%. In several cases in which the plaintiffs did not provide any expert report to substantiate their claim, or in which the court was unconvinced by an expert report provided, European courts have used a broad axe approach to award damages in 2023: The Spanish Supreme Court in several parallel decisions, the Competition Appeal Tribunal in London in the Royal Mail case and the Regional Court in Berlin each awarded damages in the range of 5% in decisions concerning the European trucks cartel.
  • Battle of the experts: Where plaintiffs and defendants submit individual economic expert reports, several European courts based their decision on the report they found most convincing. In several hundred decisions, Spanish courts found the economic expert reports which the defendants had submitted rather unconvincing, leading them to estimate damages based on the economic expert reports which the plaintiffs had submitted – this methodology often led to damages awards in the range of 15-25%. Other courts used the more convincing expert report as a starting point but applied deductions where they felt unconvinced in limited areas – in Spain this methodology often led to awards in the range of 8-15%. In its decision of 25 September 2023 concerning the elevators and escalators cartel, the Berlin Regional Court applied a similar approach and awarded 15.89%.
  • Court appointed experts: While the Competition Appeal Tribunal in London has the benefit of having economists among its specialized judges, Austrian and German trial courts in particular have asked external experts for assistance in the process of judicial damages estimation. Courts in Mannheim and Hanover (in connection with the German sugar cartel) as well as in Vienna, Stuttgart or Munich (in relation to the European trucks cartel) have instructed renowned economists (often academics) to prepare independent reports. These may be based on a comparison of submissions by the parties or apply their own methodology. Based on the views of a court-appointed expert, a controversial decision from a lower court in Mannheim identified an overcharge of 2% in a sugar cartel decision. A court-appointed expert recently submitted several parallel opinions to the trial court in Stuttgart, according to which the overcharge in the trucks cartel was approx. 8.4%.

Recent case law shows that agreeing liquidated damages clauses and preparing substantial economic expert reports have a significant impact on the likelihood of success of any cartel damages action in Europe. Germany’s Supreme Court has highlighted that any trial court needs to duly consider economic arguments and expert reports submitted.

Going forward, decisions by the Supreme Courts of the EU member states and the UK will make outcomes in each forum more predictable. While an update of the EU Damages Actions Directive is not to be expected in the near future, Germany and other member states consider improvements to their procedural and substantive framework for antitrust litigation.