Private Enforcement Under EU Law: Abuse of Dominance and the Quantification of Lucrum Cessans

01 November 2013
By Prof. Dr. Frank P. Maier-Rigaud with Prof. Dr. Ulrich Schwalbe of the University of Hohenheim

Claims for damages caused by violations of Article 101 and 102 Treaty on the Functioning of the European Union (TFEU) are viewed as an important private enforcement complement to the public enforcement of competition law by the European Commission (EC) and national competition authorities in the European Union (EU). In the last few years, several theoretical and applied studies investigating the fundamental economic principles and empirical-econometric methods to determine damages have been presented with the aim to guide the courts on how to quantify damages and what amount of damages to ultimately award. This debate has been further fueled by the EC's proposed Directive aiming at facilitating such claims by providing for a common framework within which damage claims should be treated by National Courts.

In this article from Competition Policy International's Antitrust Chronicle, NERA Director Prof. Dr. Frank P. Maier-Rigaud and Prof. Dr. Ulrich Schwalbe of the University of Hohenheim argue that the EU debate has not managed to fully emancipate itself from legal categories that derive their meaning exclusively from US law and therefore have (or should have) no particular economic or legal relevance in an EU context. In addition, while the discussion has generally focused on harm emanating from cartel infringements, the quantification of damage in abuse of dominance cases remains largely unexplored. The article sheds some light on the important role of quantity effects as part of the damage, and the particular challenges for the calculation and the assessment of harm in the context of Article 102 TFEU.