A major difficulty encountered by courts and parties in antitrust damages actions is how to quantify the harm suffered. Quantification is based on comparing the actual position of claimants with the position they would find themselves in had the infringement never occurred.
In any hypothetical assessment of how market conditions and the interactions of market participants would have evolved without the infringement, complex and specific economic and competition law issues often arise. Courts and parties are increasingly confronted with these matters and with considering the methods and techniques available to address them.
Quantification is often a difficult exercise through which the exact amount of harm suffered by a victim is established. The complex legal and economic issues involved make this exercise particularly costly and difficult, especially in cases where economic expertise is required. Thus, quantifying antitrust harm has turned out to be one of the major obstacles to compensation of injured parties.
In view of these difficulties, the Commission adopted a Communication on quantifying harm in antitrust damages actions.
In the Communication, the Commission recalls the main existing principles that may help court and parties deal with this issue, such as the requirement that national rules on quantification should not make it excessively difficult or practically impossible to obtain compensation for the harm suffered.
The Commission’s Communication on quantification is accompanied by a more detailed Practical Guide drawn up by the Commission’s services. The aim of this Practical Guide is to offer assistance to both the national courts, and to the parties involved in actions for damages, by making the information relevant for quantifying the harm caused by antitrust infringements more widely available.
The Guide offers insights on the types of harm normally caused by anticompetitive practices. It also offers an overview of the main methods and techniques available to quantify such harm in practice.
The legal framework in which courts deal with the quantification of harm is defined by EU and national law, including rules on:
- the heads of damages to be compensated and general rules of liability governing claims for compensation;
- requirements such as causality or proximity that link the illegal act and the harm. The Court of Justice has clarified in this respect that in so far as there are no rules at EU level on this matter, it is for national law to prescribe the rules on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed;
- the procedural framework in which claims for damages are adjudicated.National rules typically provide for an allocation of the burden of proof and of the respective responsibilities of the parties to make factual submissions to the court;
- the appropriate standard of proof, which may vary between different stages of the proceedings, and may also be different for questions of liability for damages and those of the quantum of damages;
- to what extent and how courts are empowered to quantify the harm suffered on the basis of approximate best estimates or equitable considerations; and
- the admissibility and the role of evidence in civil litigation and its evaluation(and in particular of expert evidence).
Within their respective legal frameworks, legislators and courts have often adopted pragmatic approaches in determining the amount of damages to be awarded, for instance, by establishing presumptions. The burden of proof may shift, for example, once a party has provided a certain amount of facts and evidence. Also, the law of the Member States may provide that the illicit profit made by the infringingundertaking(s) plays a role — either directly or indirectly — in estimating the harm suffered by injured parties.
The purpose of the Practical Guide is to place at the disposal of courts and parties to damages actions economic and practical insights that may be of use when national rules and practices are applied. To this end, the Practical Guide gives insights into the harm caused by anticompetitive practices prohibited by the Treaty and information on the main methods and techniques available to quantify such harm.
The Commission hopes that such guidance may help the claimant make factual submissions to the court concerning the amount of damages claimed and may assist the defendant in pleading his position vis-à-vis these submissions by the claimant. The guidance may also help parties in finding a consensual resolution of their disputes, be it within or outside the context of judicial proceedings or alternative dispute resolution mechanisms.
The Practical Guide is purely informative, does not bind national courts and does not alter the legal rules applicable in the Member States to damages actions based on infringements of Article 101 or 102 TFEU.
Nothing in the Practical Guide should be understood as arguing against the use of more pragmatic approaches, or as raising or lowering the standard of proof or the level of detail of the factual submissions required from the parties in the legal systems of the Member States. Indeed, it may well be sufficient for the parties to provide facts and evidence on the quantum of damages that are less detailed than the methods and techniques discussed in this Practical Guide.
Dr Kees Jan Kuilwijk