Umbrella pricing and cartel damages under EU competition law

Franck, Jens-Uwe

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Document Type: Working paper
Year of publication: 2015
The title of a journal, publication series: EUI Working Paper / AEL, Academy of European Law
Volume: 2015/18
Issue number: 1
Page range: 135-167
Place of publication: Badia Fiesolana, San Domenico
Publishing house: European Law University
ISSN: 1831-4066
Publication language: English
Institution: School of Law and Economics > Bürgerl. Recht, Handels- u. Kartellrecht (Franck 2014-)
Subject: 340 Law
Abstract: This article explores whether cartelists should be liable for losses resulting from umbrella pricing, thereby critically evaluating the ECJ’s judgment in “Kone”. Since the EU legislature did not resolve the question of liability for umbrella pricing, it has to be evaluated in accordance with national law, which must however comply with the principles of equivalence and effectiveness pursuant to Article 4(3) TEU. Therefore and in accordance with the Court’s judgment in “Courage”, the decisive criterion should be the effect a cartelist’s liability for umbrella pricing would have on effective and efficient enforcement of competition law. An analysis based on the standard model of optimal sanctioning reveals the ambivalent effect of such a liability. Thus, in view of opposing risks of systematic over- and under-deterrence and in accordance with the principle of institutional balance, the Court has to leave the EU legislature and the national legislatures, respectively, with the discretion not to provide for compensation in the case of umbrella effects

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