Private enforcement and claims for damages

The European Commission and individual member states have encouraged private enforcement of competition cases and claims for damages when competition law is broken. Dispute support – assisting clients involved in such cases prior to and during trial – is a key aspect of our work.

We advise clients in establishing or defending allegations of a breach of Article 101 or Article 102 TFEU (or related national provisions) before the courts, and in follow-on actions after competition authorities have made decisions.

Our role typically involves some or all of the following steps:

  • Assessing liability: Does the firm have a dominant position and did it abuse it? Were the relevant agreements anti-competitive and were there offsetting efficiency benefits?
  • Identifying causation: Did a breach cause harm to another party? Were there other economic reasons for the outcomes seen in the market?
  • Calculating quantum: How much were profits of customers or competitors reduced by the actions in question?

Article 101: GIS follow-on damages ABB faced a follow-on damages claim in front of the UK High Court resulting from its participation in an EU-wide cartel relating to the supply of gas insulated switchgear (GIS). National Grid, the owner of the UK electricity transmission network, which had purchased a number of GIS projects from ABB and other co-defendants during the period of the operation of the cartel, was claiming that it had paid inflated prices and, as a result, had suffered a loss. Extensive empirical analysis was required to determine the size of the overcharge, taking into account the highly bespoke nature of GIS projects, and establish whether the regulatory regime faced by National Grid would have enabled it to pass-on any overcharge to its own customers. The claim was successfully settled shortly before reaching trial.

The approach to establishing and measuring harm will often involve some form of comparator analysis. This may involve assessing how the sales and margins achieved by the claimant compare with its performance over a certain period of time, geography, or a product or customer base not subject to the unlawful practice.

Identifying what constitutes a reasonable comparison is critical. It is vital to assess whether the economic factors determining the comparator sales and margins are similar to those that would have normally applied.  In cartel damages cases, it may also be relevant whether the claimant passed on any overcharge as higher prices to its own customers.

The Frontier Economics team is highly professional and a joy to work with. They master the art of making a challenging subject accessible to the layman, and are instrumental in shaping the strategy in a case.

Dominique Speekenbrink, Vice President and Head of Antitrust Practice Group, ABB

Article 102: Enron vs English, Welsh and Scottish Railway (EWS) The UK Office of Rail Regulation found that EWS had abused a dominant position in the coal freight market by discriminating against Enron, a downstream customer, in a manner that resulted in Enron losing the opportunity to win a potentially lucrative contract. Enron’s liquidator brought a damages claim to the UK Competition Appeal Tribunal for a nine-figure sum. We provided expert witness evidence on behalf of EWS which argued that causation had not been proven, as there were other reasons why Enron would not have won the contract in question. The Tribunal dismissed the claim on this basis.

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