A Primer on Damages of Cartel Suppliers Determinants, Standing US vs EU and Econometric Estimation

Abstract

Die Dis cus si on Pape rs die nen einer mög lichst schnel len Ver brei tung von neue ren For schungs arbei ten des ZEW. Die Bei trä ge lie gen in allei ni ger Ver ant wor tung der Auto ren und stel len nicht not wen di ger wei se die Mei nung des ZEW dar.Dis cus si on Papers are inten ded to make results of ZEW research prompt ly avai la ble to other eco no mists in order to encou ra ge dis cus si on and sug gesti ons for revi si ons. The aut hors are sole ly respon si ble for the con tents which do not neces sa ri ly repre sent the opi ni on of the ZEW. Non-technical summaryPrivate enforcement of competition law is on the rise worldwide and a major item on the EU competition policy agenda. The relevant provisions in the EU and the US confer a right to damages to "any individual" and "any person" harmed by a cartel. However, while there is much research about actions for damages by cartel customers, the question whether and how other parties that may incur losses due to a cartel can obtain damages is usually neglected and largely open in Europe. This paper analyses the issue with respect to suppliers of a downstream cartel from a comparative law and economics perspective.First, we show that the losses such cartel suppliers incur are driven by three effects: Cartel members lower sales and correspondingly their input demand (direct quantity effect), which in turn affects the price suppliers can charge (price effect) and their production costs (costWe then analyze whether suppliers are entitled to claim these losses as damages in the two leading competition law regimes, the US and the EU. We find that, while the majority view in the US denies standing, the emerging position in the EU and important member states is to grant supplier standing. We argue that the case law in Courage v. Crehan implies that the type of loss which the competition provisions are intended to prevent is broader in the EU than in the US. In particular, pursuant to EU law, a right to damages does not require that the loss suffered occurred in the same market than the lessening of competition that makes the defendant's conduct illegal. As a consequence, both Germany and England have abandoned important traditional limitations on standing. We argue that the more generous approach to standing in the EU compared to the US can be justified in view of the different institutional context and the goals assigned to the right to damages in the EU.According to our analysis cartel suppliers in principle have a right to damages in the EU, as no general restrictions on standing ought to apply; however, the causation requirement will be an important hurdle to clear in a particular case. Sound econometric estimation techniques are of major importance to overcome that obstacle. In this respect, we finally present an econometric approach based on residual demand estimation that allows to quantify all determinants of cartel suppliers' damages.Our results therefore suggest that supplier damage claims are a viable option that can contribute to full compensation an...

Estimating Consumer Damages in Cartel Cases

“…This is especially the case when considering groceries, where several cartels have recently been discovered. 2 Last but not least, current European competition law does not favor the exercise of class-action lawsuits which would allow to effectively bundle the individual claims of final consumers and could (at least) partially overcome some obstacles.…”

“…This may similarly lead to passing-on effects and price changes in the upstream layers. For an in-depth analysis, see Bueren and Smuda (2013). Potential purchasers might be damaged if they bought substitutes from non-colluding firms but would have bought the cartel product if prices had been constant.…”