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?
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.