Umbrella Pricing and Cartel Damages under EU Competition Law

33 Pages Posted: 26 May 2015

See all articles by Jens-Uwe Franck

Jens-Uwe Franck

University of Mannheim - Department of Law

Date Written: 2015

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.

Keywords: Umbrella pricing; Competition law damages; Principle of effectiveness; Institutional balance; Reasonable foreseeability

Suggested Citation

Franck, Jens-Uwe, Umbrella Pricing and Cartel Damages under EU Competition Law (2015). EUI Department of Law Research Paper No. 2015/18, Available at SSRN: https://ssrn.com/abstract=2610104 or http://dx.doi.org/10.2139/ssrn.2610104

Jens-Uwe Franck (Contact Author)

University of Mannheim - Department of Law ( email )

Schloss Westflügel
Mannheim, 68131
Germany

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