Opinion of the Advocate General — ECLI:EU:C:2014:45
Date: 2014-01-30
Language of the case: German
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary 83. To sum up, loss resulting from umbrella pricing cannot therefore be regarded as being unforeseeable by the members of a cartel, and the reparation of that loss is consistent with the objectives of Article 81 EC or Article 85 of the E(E)C Treaty (now Article 101 TFEU). It would run counter to the practical effectiveness of those competition rules for the national civil law categorically to exclude compensation for such loss from the outset. C – Concluding remarks 84. The solution which I have proposed does not mean that cartel members will automatically and in every individual case be required to provide compensation to customers of undertakings not party to a cartel, but it does not rule out such an obligation to provide compensation from the outset either. Rather, it will always be necessary to carry out a comprehensive assessment of all the relevant circumstances in order to determine whether the cartel in the case in question has given rise to umbrella pricing. 85. Shifting the umbrella pricing issue from the level of pure theory to that of the production of evidence seems to me to be the best way of contributing to the effective enforcement of the European competition rules, while taking due account of the interests of all economic operators. 86. No doubt there will not always be meaningful studies or other evidence that reasonably support the conclusion that umbrella pricing caused by a cartel has taken place on the market in question. On the other hand, however, such an effect is also anything but excluded and the losses connected with it are by no means as ‘speculative’ and ‘uncertain’ (47) as is sometimes argued. In the present case, for example, the Austrian Oberster Gerichtshof stated in its order for reference that the elevator cartel had distorted the expected development of prices, (48) and ÖBBInfrastruktur refers to a study said to prove the emergence of umbrella pricing. (49) 87. It should be noted in passing that, contrary to what many critics allege, the affirmation of the civil liability of cartel members for umbrella pricing is neither more nor less ‘pro-business’ than the categorical exclusion of any obligation to provide compensation, which the referring court seems to favour. After all, the economic operators involved include not only the members of the cartel but also the customers who were charged inflated prices irrespective of whether their contracts were with the cartel members themselves or with undertakings not party to the cartel. It would be eminently unfair to extend unilateral preferential treatment to the cartel members, the very persons who are guilty of serious infringements of the competition rules, in the form of a categorical exclusion of umbrella pricing from the ambit of their civil liability, particularly since this would, as already mentioned, (50) create inappropriate incentives from the point of view of the effective enforcement of the competition rules. 88. Nor is my proposed solution incompatible with the legislative proposal for the partial harmonisation of actions for damages under national law recently put forward by the European Commission. As discussed with the parties to the proceedings at the hearing, the Commission’s proposal for a directive does not preclude the award of compensation for loss resulting from umbrella pricing. (51) 89. The fact that the US case-law on ‘umbrella claims’ is inconsistent (52) and that the United States Supreme Court has not as yet provided any clarification in this regard should not prevent the Court of Justice from addressing the issue of umbrella pricing. V – Conclusion 90. In the light of the foregoing considerations, I propose that the Court’s answer to the request for a preliminary ruling from the Austrian Oberster Gerichtshof should be as follows: Article 85 of the E(E)C Treaty and Article 81 EC preclude the interpretation and application of domestic legislation enacted by a Member State which categorically excludes, for legal reasons, any civil liability of undertakings belonging to a cartel for loss resulting from the fact that an undertaking not party to the cartel, benefiting from the protection of the cartel’s practices, set its prices higher than would otherwise have been expected under competitive conditions. 1 – Original language: German. 2 – See, for example, Case C‑199/11 Otis [2012] ECR and Case C‑501/11 P Schindler Holding and Others v Commission [2013] ECR, as well as, additionally, my Opinion in the latter case. 3 – See also in this regard Otis and Others (paragraph 18 et seq.) and Schindler Holding and Others v Commission (paragraph 10 et seq.), cited in footnote 2. 4 – Order of the Oberlandesgericht Wien (Higher Regional Court, Vienna), sitting as antitrust court, of 14 December 2007 (ref. 25 Kt 12/07). 5 – Order of the Oberster Gerichtshof, sitting as higher antitrust court, of 8 October 2008 (ref. 16 Ok 5/08). 6 – Part judgment of the Handelsgericht Wien (Commercial Court, Vienna) of 19 September 2011 (Ref. 19 Cg 21/10z-57). 7 – Order of the Oberlandesgericht Wien, sitting in its appellate jurisdiction, of 21 December 2011 (Ref. 1 R 272/11v-65). 8 – Ref. 7 Ob 48/12b. 9 – Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraphs 25 and 26; Joined Cases C‑295/04 to C‑298/04 Manfredi [2006] ECR I‑6619, paragraphs 60 and 61; Case C‑360/09 Pfleiderer [2011] ECR I‑5161, paragraph 28; Otis (cited in footnote 2, paragraphs 41 and 43; and Case C‑536/11 Donau Chemie [2013] ECR, paragraph 21. 10 – For the state of opinion on both sides of the Atlantic see, inter alia, R.D. Blair and V.G. Maurer: ‘Umbrella Pricing and Antitrust Standing: An Economic Analysis’, in: Utah Law Review 1982, p. 763; J.M. Lave, ‘Umbrella Standing: the tradeoff between plaintiff suit and speculative claims’, in: Antitrust Bulletin 48(2003), p. 223; F.W. Bulst, ‘Schadensersatzansprüche der Marktgegenseite im Kartellrecht’, Baden-Baden 2006, p. 255; F.W. Bulst, in: W. Möschel and F. Bien (ed.), Kartellrechtsdurchsetzung durch private Schadensersatzklagen, Baden-Baden 2010, p. 225 (242 et seq.); G. Meeßen, ‘Der Anspruch auf Schadensersatz bei Verstößen gegen EU-Kartellrecht – Konturen eines europäischen Kartelldeliktsrechts’, Tübingen 2011, p. 256 et seq.; I. Hartung, ‘Umbrella Claims: Schadenersatz bei Kartellverstößen auf Um- oder Abwegen?’, in: ecolex 2012, p. 497; H. Beth and C.-M. Pinter, ‘Preisschirmeffekte: Wettbewerbsökonomische Implikationen für kartellrechtliche Bußgeld- und Schadensersatzverfahren’, in: Wirtschaft und Wettbewerb (WuW) 2013, p. 228; R. Inderst, F. Maier-Rigaud and U. Schwalbe, ‘Umbrella Effects’, in: IESEG Working Paper Series 2013-ECO-17. 11 – Manfredi (cited in footnote 9), paragraphs 64 and 92. 12 – Courage and Crehan, paragraph 29, Manfredi, paragraphs 62, 64 and 77, Pfleiderer, paragraph 30, and Donau Chemie, paragraph 25, all cited in footnote 9. 13 – See in this regard Courage and Crehan, paragraphs 25 and 26, and Manfredi, paragraphs 60 and 61, cited in footnote 9. The Commission, too, recognises this in its proposal of 11 June 2013 for a directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, COM(2013), 404 final (‘the proposal for a directive’), where it speaks of ‘the Union right to compensation for harm caused by infringements of Union competition law’ (see recital 11 in the preamble to the proposal for a directive). 14 – On the liability of the Member States see, fundamentally, Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraphs 35 to 37, and Joined Cases C‑46/93 and C‑48/93 Brasserie du pêcheur and Factortame [1996] ECR I‑1029, paragraph 31. 15 – So also Advocate General Van Gerven in his Opinion of 27 October 1993 in Case C‑128/92 Banks [1994] ECR I‑1209, points 36 to 45. 16 – See Courage and Crehan, paragraphs 19 and 23, and Manfredi, paragraphs 39 and 57, cited in footnote 9, each with further references. 17 – Courage and Crehan, paragraph 26, and Manfredi, paragraphs 60, 89 and 90, both cited in footnote 9. 18 – Manfredi (cited in footnote 9), paragraph 95. 19 – Manfredi (cited in footnote 9), paragraphs 95 and 96. 20 – On the concept of ‘level playing field’, see, for example, my Opinions in Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission [2010] ECR I‑8301, point 169, Case C‑17/10 Toshiba Corporation and Others [2012] ECR, point 118, Case C‑226/11 Expedia [2012] ECR, point 37, and Case C‑681/11 Schenker and Others [2013] ECR, point 48. 21 – In this regard, see, fundamentally, Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier and others v Council [1979] ECR 3091, paragraph 21: ‘a sufficiently direct consequence’; see also the judgment of 30 April 2009 in Case C‑497/06 P CAS Succhi di Frutta v Commission, paragraph 67, and Case C‑419/08 P Trubowest Handel and Makarov v Council and Commission [2010] ECR I‑2259, paragraph 53. 22 – Brasserie du pêcheur and Factortame (cited in footnote 14), paragraph 51, and Case C‑420/11 Leth [2013] ECR, paragraph 41. 23 – Since Advocate General Van Gerven spoke in favour of it in his Opinion in Banks (cited in footnote 15), points 49 to 54, the criterion of a direct causal link recently made its express appearance in the case-law on the obligation of cartel members to provide compensation in the judgment in Otis (cited in footnote 2), paragraph 65. 24 – The study group on a European civil code is thinking along the same lines when it states that damage compensable by way of non-contractual liability must be ‘legally relevant damage’: … ‘loss or injury constitutes legally relevant damage only if it would be fair and reasonable for there to be a right to reparation or prevention …’; see C. von Bar and E. Clive, ‘Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference’, Munich 2009, Volume 4, Book VI, Chapter 2, VI.-2:101. 25 – A view almost certainly not shared by Advocate General Ruiz-Jarabo Colomer, who, in his Opinion in Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, point 140, required that the damage to be compensated must ‘directly, immediately and exclusively arise from the unlawful act’ (emphasis added). As far as can be seen, however, this particularly strict formulation never found its way into the case-law of the European Union courts. 26 – See, on the one hand, Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraph 222, CAS Succhi di Frutta v Commission (cited in footnote 21), paragraphs 61 and 62, Case C‑460/09 P Inalca and Cremonini v Commission [2013] ECR, paragraph 120, and the judgment of 10 July 2012 in Case T‑587/10 Interspeed v Commission, paragraph 40, in each of which it is assumed that the causal chain had been broken, and, on the other, the judgment of the General Court of 14 December 2005 in Case T‑320/00 CD Cartondruck v Council and Commission, in particular paragraph 177, where it is held that the chain of causality was not broken. 27 – For more detail on the foreseeable nature of the conduct of the person not party to the cartel, see points 41 to 52 of this Opinion, below. 28 – See in particular in this regard, at national level, the judgment of the German Bundesgerichtshof (Federal Court of Justice) of 28 June 2011, ‘ORWI’ (KZR 75/10, BGHZ 190, 145. The Austrian Oberster Gerichtshof (Supreme Court), too, has adopted position to the same effect in the present case (order of 17 October 2012, Ref. 7 Ob 48/12b). The same is true of the Commission’s proposal for a directive (see in particular recitals 11 and 33 in the preamble to, and Articles 12 and 13 of, the proposal for a directive). 29 – These may, for example, include business strategy (emphasis on brand image, premium pricing strategy, etc.) and entrepreneurial personality, but also the purchasing power of customers. 30 – According to uncontradicted information supplied by ÖBBInfrastruktur, the elevator cartel in Austria involved the largest manufacturers in the industry, whose combined market share was in the region of 80%. 31 – According to the findings made in the main proceedings, at least a third of the market volume was the subject of specific agreements between the cartel members, who even attempted to coordinate their activities in respect of well over half the volume of new machinery on the market in Austria (see point 8 of this Opinion, above). 32 – See to the same effect H. Beth and C.-M. Pinter, WuW 2013, p. 228 (232): ‘Even where there are differences between the products, umbrella pricing is not unlikely, although it will be less marked than on a highly homogenised market’. 33 – In this connection, ÖBBInfrastruktur has drawn attention to the rules applicable in Austria to the opening of bids in a tendering procedure. 34 – Courage and Crehan (cited in footnote 9), paragraphs 20 and 21. On the importance of the competition rules to the functioning of the internal market, see also Case C‑126/97 Eco Swiss [1999] ECR I‑3055, paragraph 36, and – in relation to the legal position following the entry into force of the Treaty of Lisbon – Case C‑52/09 TeliaSonera [2011] ECR I‑527, paragraph 20, and Case C‑469/09 Commission v Italy [2011] ECR I‑11483, paragraph 60. 35 – Courage and Crehan (cited in footnote 9), paragraph 27, Pfleiderer (cited in footnote 9), paragraph 29, Otis (cited in footnote 2), paragraph 42, and Donau Chemie (cited in footnote 9), paragraph 23. 36 – See to this effect Courage and Crehan (cited in footnote 9), paragraph 26, Manfredi (cited in footnote 9), paragraphs 60, 89 and 90, and Otis (cited in footnote 2), paragraph 41. On the importance of private enforcement, see also the White Paper on ‘Damages actions for breach of the EC antitrust rules’ (COM[2008] 165 final). In its White Paper, the Commission proposes measures which are designed ‘to create an effective system of private enforcement [of competition law] by means of damages actions that complements, but does not replace or jeopardise, public enforcement’ (p. 4, Section 1.2). The EFTA Court, too, recently had occasion to highlight the importance of the private enforcement of competition law and to emphasise that this is in the public interest (judgment of 21 December 2012, DB Schenker v EFTA Surveillance Authority, E-14/11, paragraph 132). 37 – In Article 11 of, and recital 28 in the preamble to, its proposal for a directive, the Commission proposes that an undertaking to which a competition authority has granted immunity from fines as part of a leniency programme should to some extent benefit from favourable treatment in the context of civil liability, too. 38 – Even though the Commission tried to play down the relevance of the deterrent effect at the hearing, the Court of Justice none the less attaches considerable importance to it in settled caselaw; see Courage and Crehan, paragraph 27, Manfredi, paragraph 91, Pfleiderer, paragraph 28, and Donau Chemie, paragraph 23, all cited in footnote 9. 39 – In response to my enquiry, ThyssenKrupp’s counsel played down this submission at the hearing as ‘rhetorical exaggeration’. 40 – The Commission’s proposal for a directive does, however, provide for some easing of the burden of proof. 41 – See to the same effect, not least, Courage and Crehan, paragraph 25, Manfredi, paragraph 89, and DonauChemie, paragraph 22, all cited in footnote 9; see also, in particular on the relevance of Article 47 of the Charter of Fundamental Rights in the context of a civil dispute between private individuals, Joined Cases C‑317/08 to C‑320/08 Alassini and Others [2010] ECR I‑2213, in particular paragraph 61. 42 – Donau Chemie (cited in footnote 9), paragraph 24. 43 – Donau Chemie, paragraph 23; similarly, see Courage and Crehan, paragraphs 26 and 27, Manfredi, paragraph 91, and Pfleiderer, paragraph 28, all cited in footnote 9. 44 – See points 41 to 52 of this Opinion, above. 45 – In response to my enquiry at the hearing before the Court, even Otis’s counsel conceded the validity of this distinction. 46 – Manfredi (cited in footnote 9) paragraphs 92 and 93. 47 – See to this effect in particular – from the case-law of the courts of the United States of America – the decisions of the United States Court of Appeals (Third Circuit), Mid-West Paper Products Co. v. Continental Group Inc., 596 F.2d 573, 597 (1979) and of the United States District Court (District of Columbia), Federal Trade Commission v Mylan Laboratories, 62 F.Supp.2d 25, 39 (1999). 48 – See point 7 of this Opinion, above. 49 – It is for the national courts to examine this submission and to assess the evidential value of the study. 50 – See points 65 and 68 of this Opinion, above. 51 – That proposal for a directive (cited in footnote 13) does not seek to harmonise this area in full, but, as is clear not least from its title, is concerned only with the adoption of ‘certain rules governing actions for damages’ and expressly recognises that there are other ‘aspects not dealt with in this Directive’ (see recital 10 in the preamble to the proposal for a directive). Moreover, the provisions contained in the proposal for a directive are formulated in a way that is sufficiently broad as also to include compensation for loss resulting from umbrella pricing or, in any event, not to exclude it (see in particular Article 11(2) and (4) of the proposal for a directive, which refer to ‘injured parties other than the direct or indirect purchasers or providers’ of the infringing undertakings). 52 – Judgments finding in favour of liability: United States Court of Appeals (Seventh Circuit), United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 627 (2003); United States Court of Appeals (Fifth Circuit), In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1166 (1979). Judgements finding against such liability, on the other hand, include: United States Court of Appeals (Third Circuit), Mid-West Paper Products Co. v. Continental Group Inc., 596 F.2d 573, 597 (1979); United States District Court (District of Columbia), Federal Trade Commission v.Mylan Laboratories, 62 F.Supp.2d 25, 39 (1999).