Clarification for cartel damages actions

In case C‑435/18, Otis Gesellschaft m.b.H and Others v Land Oberösterreich and Others, the Court of Justice of the European Union (“CJEU”) was questioned by the Oberster Gerichtshof (Supreme Court, Austria) about the compatibility with Article 101 TFEU of a national law limiting the possibility of requesting compensation for losses caused by a cartel only to suppliers and customers of the market affected by the cartel. The question arose in the context of a claim for damages brought by, inter alia, the Land Oberösterreich (“applicant”) against several companies active on the market for the installation and maintenance of lifts and escalators. The participation of these companies in an illegal cartel had already been established. The applicant based its claim on the loss it had suffered as a body granting subsidies since increased construction costs caused by the cartel had led it to grant subsidies in a higher amount than what would have been the case in the absence of the cartel.

In its judgment of 12 December 2019, the CJEU held, in essence, that in view of the full effectiveness of Article 101 TFEU and effective protection against the adverse effects of an infringement of competition law, the possibility of requesting compensation for loss caused by a cartel cannot be limited only to suppliers and customers of the market affected by the cartel.

According to the CJEU, any person who was not operating as a supplier or customer on the market affected by a cartel, but who granted subsidies to purchasers of products offered on that market can request compensation for loss suffered as a result of the fact that, since the amount of those subsidies was higher than what it would have been in the absence of that cartel, any such person was unable to use that difference more profitably.

Finally, the CJEU recalled that it was for the national court to determine whether the applicant had the possibility of making more profitable investments in the absence of the cartel and whether it had established the existence of a causal connection between that loss and the cartel at issue.

This guidance from the CJEU on compensation of indirect losses from cartels is expected to further support the movement towards more private enforcement of antitrust law.