Quantifying Antitrust Damages â€“ Convergence of Methods Recognized by U.S. Courts and the European Commission
Claire Korenblit, Mar 13, 2012
The degree to which plaintiffs pursue antitrust damages actions in the United States and the European Union varies considerably. For almost 100 years, private enforcement of the antitrust laws through damages actions has played a major role in the development of U.S. antitrust jurisprudence. In the European Union, although private suits have increased in number in recent years, successful actions are infrequent, and legislative advances are piecemeal and limited to certain jurisdictions.
In its 2005 Green Paper on damages actions for breach of the EU antitrust rules, the Commission identified difficulties in quantifying the harm suffered by injured parties as one of the key stumbling blocks in antitrust damages actions in the European Union. Subsequently, in its 2008 White Paper, the Commission announced its intention to draw up a framework with pragmatic, non-binding guidance on quantifying the harm suffered in such actions. Most recently, in June 2011, the Commission released for comment a draft guidance paper on quantification of damages for EU antitrust violations (the "Guidance Paper"). The Guidance Paper is intended to provide guidance to courts and parties to damages actions on the calculation of harm from antitrust infringements.
The Commission has declared, "the legal framework for more effective antitrust damages actions should be based on a genuinely European approach." Yet damages for competition law infringements have been awarded by courts in very few Member States, and "[o]f those cases, the economic models used to calculate damages appear to have been fairly simplistic." With more than a century of private antitrust litigation, U.S.-developed case law and quantification methods may therefore provide valuable lessons for quantifying antitrust damages in European private actions. As described below, the procedural and quantitative methods for calculating antitrust damages outlined in the Guidance Paper are in fact generally consistent with the typical approaches to damage estimations recognized and approved by U.S. federal courts.