Joint and Several Liability

Joint and several liability of cartel members

Cartel members are jointly and severally liable for the damage caused by their illegal practices under the general principles of tort law across Europe. The joint and several liability doctrine allows a plaintiff to recover the full amount of the damages arising from the tortiously caused injury from any one or any combination of the defendants who contributed to the injury. Accordingly, regardless of any liability under contract law, each cartel member may be held liable for the entire cartel-related damage that occurred to the victim concerned.

This also applies to cartel members who have been granted leniency, that is, immunity or fine reduction, by the competition authorities. In Hungary, there is a specific provision in the 2009 Competition Act, stipulating that the successful leniency applicant is not obliged to compensate injured parties unless they are unable to collect their claims from the other cartel members. The Hungarian rule is intended to increase the incentives for cartel members to file leniency applications, since it limits both the administrative liability and the civil liability as compared to the other cartel members. Nonetheless, it acknowledges both the principles of joint and several liability and the goal of full compensation. This approach, in CDC’s opinion, is more appropriate than the suggestion of the European Commission in its White Paper to strictly limit the civil liability of the immunity recipient to claims by his direct and indirect contractual partners.

Possibility of contribution

As a consequence of joint and several liability towards victims, the issue of ‘contribution’ among cartel members arises. The private law regimes across Europe generally allow that a person who has been held liable for the infringement on a joint and several liability basis and who therefore has actually paid damages to the plaintiff may be able to obtain contribution from the co-infringers.

If there is indeed such a right to contribution among antitrust defendants, this could be an obstacle to settlement negotiations between a cartel member and cartel victims, as the settling cartel member might expect claims for redress by the other cartel members.

However, it is far from clear whether or not there is a right to contribution in antitrust cases and, if so, how contribution among antitrust defendants will work in practice, if at all. Within the EU, there are no precedents in this regard so far. However, it is noteworthy that the US antitrust law has contained a ‘no-contribution rule’ for the last one hundred years. This is a conscious exception to the rule in general US tort law, as there is basically a right to contribution in cases of joint and several liability. The no-contribution rule in antitrust cases is explicitly justified by the objectives of effective deterrence and full compensation, since it is intended to promote settlements between cartel members and victims. These objectives are also important from a European point of view. Consequently, some legal commentators think that principles of EU competition law stipulate a no-contribution rule on this side of the Atlantic as well. At the very least, it is very difficult, if not impossible, to effectively share antitrust damages among cartel members given the complexity of this matter and the conflicting interests of the parties concerned.

The following figure demonstrates the vast number of – factually and legally complex, partly unknown – interactive relationships that may occur in case of an extensive cartel under German law, for example.



Under its Leniency PLUS+ concept, CDC offers cooperating cartel members practicable solutions intended to effectively limit their risk exposure under joint and several liability and (possible) contribution rules.