'The full effectiveness of Article 85 of the Treaty and, in particular, the practical effect of the prohibition laid down in Article 85 (1) would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition'
Court of Justice of the European Union; 20. Sep. 2001 - Courage
Standing
Under European law any person who has suffered damage as a result of anticompetitive practices is generally entitled to bring a damage claim. The following diagram from the Ashurst Report provides an overview of the potential victims in antitrust cases. It shows the potential repercussions that in particular illegal price-fixing and output restriction by cartel members could have up and down the supply chain and in neighbouring or complementary markets. In the Ashurst Report [2004] the diagram is explained in more detail.
So far, most antitrust damage actions have been filed by direct purchasers. These involve the most straightforward calculation of damage sustained by the victims who purchased the product in question directly from the cartel members.
In its White Paper, the European Commission focused nonetheless on the enforcement of antitrust damage claims of indirect purchasers, that is, customers of the direct purchasers (or customers of their customers, down to the level of end-consumers). For this reason, the Commission makes several policy proposals aiming to encourage individuals to bring actions for damages caused by breaches of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU, ex Articles 81 and 82 EC). For more information in this respect see Collective Redress.
However, the Commission’s focus on indirect purchasers raises several practical concerns. In particular, end-consumers have usually not kept the evidence required to prove their damages in court. This especially concerns invoices on purchases of the given product (for example, beer in the Dutch Beer Cartel case) some years ago. Equally and corresponding with an increasing number of vertical links in the distribution chain the damages individually suffered disperse. This means in practice that indirect customers generally will widely lack the incentive to bring a damage claim. Thus, to the detriment of the goal of full and effective compensation, cartel members keep their unjust enrichment.
CDC does not exclude the enforcement of damages claims of indirect purchasers. CDC has developed a specific approach that takes into account the particularities of allocating dispersed claims. In this respect, cooperation with trade associations, retailer groups and/or consumer associations representing the interests of the victims concerned offer promising possibilities.
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