ECJ Advocate General says the EC can seek damages as a customer of a cartelist that it has fined

Published On 05/07/2012 | By Tina Zhuo | Cartels, Enforcement, Litigation

On 26 June 2012, Cruz Villalón, an advocate general of the European Court of Justice, issued an opinion before the European Court of Justice that the European Commission can claim damages from cartelists in its capacity as a customer, even if the European Commission has already fined them for the cartel.

In 2007, the European Commission fined elevator manufacturers Otis, Kone, Schindler and ThyssenKrupp €992 million for a cartel, in a decision that is under appeal.  The European Commission also brought an action against the elevator manufacturers at Brussels’ Commercial Court for €7.1 million in damages for losses suffered by the EU as customers of the manufacturers.

The ECJ’s advocate general issued an opinion that the European Commission can bring a follow-on claim for damages for a cartel even though it was the agency that found the cartel to be illegal.  The advocate general also said that the European Commission’s cartel decisions are binding for national courts ruling on damages claims but the court can stay proceeding while there is an appeal of the decision.

If the ECJ follows the advocate general’s opinion, then this would clear the way for future claims by the European Commission for damages where it is a customer of a cartelist that it has previously fined.

Photo credit: bogenfreund / Foter / CC BY-SA

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About The Author

Tina Zhuo is a Senior Associate in the Competition Law and Regulatory Group at King & Wood Mallesons Sydney, where she advises on a range of competition law and regulatory issues.

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