Floodgates open? ECJ allows cartel damage claim for remote economic loss

The judgment thus confirms an earlier ruling of the ECJ in the Kone-case [see our July 2014 Newsletter], in which it was held that national rules which categorically limit the type of persons that can claim cartel damages, are contrary to EU law. This ruling may lead to an increase in claims for pure economic loss against cartel participants.

The EU elevator cartel has led to a flurry of damages claims from buyers, alleging that they overpaid for elevators. Typically, these claimants are public housing agencies and real estate developers. In this case, however, it was the Land Oberösterreich (the "Land"), a public authority in Austria, who claimed damages from the elevator manufacturers. The Land had granted loans on favourable terms (i.e. with a reduced interest rate) to beneficiaries in order to realise social housing projects. The Land alleged that it had suffered loss since the costs connected with the installation of lifts, included in the overall building costs paid by the beneficiaries, had been increased as a result of the cartel. Had the cartel not existed, the Land would have granted smaller loans and would have invested the difference at the average interest rate of federal loans, resulting in a higher return on investment than the loans it granted on favourable terms. The Land claimed a sum corresponding specifically to that loss of interest, plus interest, from the elevator manufacturers.

The national proceedings and the judgment of the ECJ

In first instance, the Commercial Court of Vienna dismissed the claim. It ruled that the alleged loss did not fall within the protective scope of the cartel prohibition, which is a necessary requirement for a successful claim under Austrian law (the concept of the "Schutzzweck der Norm"). In essence, it found that the Land was not active as either a supplier or buyer on the market for lifts, and thus suffered merely indirect loss. Following proceedings before the appellate court, the Supreme Court of Austria submitted preliminary questions to the European Court of Justice about this issue.

In its judgment, the ECJ set out that the full effectiveness of the EU cartel prohibition would be put at risk if it were not open to any individual to claim damages for loss caused to him or her by a competition law infringement. A national rule which restricts this right to solely suppliers and customers of the market affected by the cartel "would from the outset systematically deprive potential victims of the possibility of requesting compensation" and is therefore contrary to EU law. Indeed, a right to full compensation exists for all loss suffered by any person, as long as there is a causal connection between the loss and the competition law infringement. Nevertheless, it is up to the Austrian court to verify (1) whether the Land actually had the possibility of making more profitable investments and, if so, (2) whether the Land has proved the existence of a sufficiently direct causal connection between its alleged loss and the elevator cartel.

Take away

Many civil law systems use concepts similar to the Austrian principle of "Schutzzweck der Norm" to shield tortfeasors from far-reaching liability. Without such norms, it is sometimes argued, defendants will be faced with a flood of claims by an indeterminate class of claimants for indeterminate amounts. In the Otis judgment, the ECJ set aside these concerns in favour of the full effectiveness of EU law. A rule that systematically precludes potential victims “from the outset”, is contrary to EU law. This may lead to an increase in litigation relating to pure economic loss against cartel participants, for example by shareholders.

This article was published in the Competition Newsletter of January 2020. Other articles in this newsletter:

• Competition rules and globalisation to face off in 2020
• Deleting WhatsApp chats during dawn raids may cost you dearly

• Access to the file in Dutch competition procedures: too little too late?