EU antitrust regulators seek to help victims calculate cartel harm

Victims of cartels may find it easier to seek damages from companies guilty of price fixing after European Union antitrust regulators released on Monday guidelines to help courts calculate the economic harm of anti-competitive practices.

The European Commission views such claims as a tool to deter and punish cartels on top of regulatory fines as high as 10 percent of a company's global turnover. However, divergent rules across the 28-country bloc mean the chances of a successful claim depend on where it is filed.

While Dutch, English and German courts have become the preferred venues for private damages claims, judges in other countries have struggled with the technical and complex details of calculating the appropriate compensation. The EU guidelines apply to customers of cartels, indirect customers and final consumers who are affected when cartels passed on price increases to them.

Compensation should include the actual loss suffered, the loss of profit and the payment of interest, the guidelines said. They outlined a number of methods and techniques based on economic and legal reasoning. "Such guidance may help the claimant make factual submissions to the court concerning the amount of damages claimed and may assist the defendant in pleading his position vis-a-vis these submissions by the claimant," the document said.

The rules will help clarify a complex issue, said Assimakis Komninos, a partner at White & Case international law firm. "They are in the right direction and certainty helps. This area remains difficult and complicated for national judges especially for generalist judges," he said.

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