CASE

Companies B, C and D signed an agreement to co-ordinate the pricing of their products. The general public was not informed of this. The European Commission decided that the cartel violated EU competition law and fined company B, C and D. The European Court of Justice upheld this decision.

Direct consumers of these companies want to recover their losses incurred as a result of the higher price they paid for the products sold by company B. The consumers did not resell the product to third parties, so company B cannot put forward a passing-on defence. They all demand compensation from company B. Will they receive compensation? The competitors of companies B, C and D who were not part of this cartel also demand compensation for their foregone profits as a result of this pricing policy from company B. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.

Joint and several liability is not needed in your answer, unless it is the main obstacle to a claim; if so, please mention that briefly.

DISCUSSIONS

AUSTRIA

Matthias Dangl and Georg E Kodek

Operative Rules

The consumers will receive compensation under general tort law (§ § 1311 in conjunction with 1293 ff ACC). The action is based on the violation of Article 101 of the Treaty on the Functioning of the European Union.

The competitors could also demand damages they suffered as a result of a cartel. Based on the facts of the case, it is not clear to us what kind of losses they could have in mind. A more realistic scenario would be that the cartel members fixed prices at a very low level to squeeze their competitors from the market. In that case, the competitors would be entitled to damages. However, it is hard to imagine a case where both consumers and competitors suffer a loss.

A collective action (as described in the Austrian section in the procedural rules chapter) would be possible.

Legal Formants

By ‘passing on’ the loss to the consumers, the losses become infinitesimal (atomised).