EUPrivLitig_PrivateAntitrustRemediesMarch2003

Private enforcement of antitrust (or competition) regula-
tion has a lengthy history in the US. In the EU, enforce-
ment of EC and national competition law has traditionally
been the preserve of the regulator. However, EU member
states are moving towards a more US-style approach, with
the courts taking on a major role in the enforcement of
competition law and follow-on claims for damages against
cartels becoming increasingly common.
Modernisation of the enforcement of EC competition law
will decentralise enforcement away from the European
Commission (Commission) and encourage the application
of Articles 81 (including 81(3)) and 82 of the EC Treaty by
national courts (see box: Reform of the application of Arti-
cles 81 and 82 EC). The courts in many member states are
already beginning to apply competition law more regularly
in private disputes.
In 2001, CLIFFORD CHANCE examined the move towards a more
litigation-based approach to competition enforcement in the EU and
considered the lessons to be learnt from the US experience. In this new
feature, Elizabeth MORONY, Ingrid COPE and a panel of experts from
Clifford Chance's team of antitrust litigation specialists analyse recent
developments in antitrust litigation in the EU and US.
“Private antitrust remedies: Part 1” and “Private antitrust remedies: Part 2” at
www.practicallaw.com/A17036 and A17561 set out in detail the basis for the claim
and the relevant procedure in each jurisdiction, and should be read in conjunction
with this article.
Essential
background
GLOBAL COUNSEL • MARCH 2003 • www.practicallaw.com/global32

GLOBAL COUNSEL • MARCH 2003 • www.practicallaw.com/global 33
Against this background, this article outlines recent impor-
tant developments in antitrust litigation in France, Ger-
many, Italy, Spain, the UK (England and Wales) and the
US. For each EU jurisdiction, it considers recent develop-
ments in relation to:
• The legal basis for a private antitrust claim.
• The types of claim that may be brought.
• Any other issues that should be considered when con-
templating bringing a claim.
In relation to the US, where private enforcement has long
been considered an integral part of antitrust regulation, the
article focuses on recent refinements of the reach of the
law.
EU
FRANCE
Basis of claim
Claims for breach of Articles 81/82 EC are based on Arti-
cle 1382 of the Civil Code; the provision relied on to
claim damages in the civil and commercial courts. The
Supreme Court (Cour de Cassation) ruled in 1982 that
only national courts have jurisdiction to decide on the
civil liabilities of undertakings for infringements of Arti-
FEATURE
Private antitrust
remedies
Latest developments
3333
www.practicallaw.com/A28534

GLOBAL COUNSEL • MARCH 2003 • www.practicallaw.com/global
cle 81 or Article 82 EC. Both the
Competition Council (Conseil de la
Concurrence) and civil or commer-
cial courts have jurisdiction to deter-
mine a breach of Articles 81/82 EC
or a breach of French competition
rules (Article L.470-6 of the New
Code of Commerce). Generally, an
action for damages before the courts
is initiated after the Competition
Council has issued a decision. How-
ever, recent decisions tend to show
an increasing trend to claim com-
pensation directly before the courts
(Cour de Cassation, 12 January
1999). There are, however, a few
judgments on claims under Articles
81/82 EC (Cour de Cassation, 14
February 1995, Mors/Labinal).
The Act on New Economic Regula-
tions (the NRE Act) (L. n° 2001-420,
15 May 2001, JO 16 May 2001) has
been amended, and now provides
that competition disputes may exclu-
sively be brought before a limited
number of specialised courts estab-
lished by Decree (Article L. 420-7 of
the Commercial Code), although, at
the time of writing, this Decree has
not yet been published.
Types of claim
Competition law arguments can be
relied on in the following ways:
• As the basis of an application for
interim relief.
• As the basis of a claim for damages
or a declaration.
Applications for interim relief.
The ordinary civil courts
may grant interim relief on
the basis of the normal do-
mestic rules and in cases re-
lying on breach of Articles
81/82 EC (Cour de Cassa-
tion, 20 October 1998). The
injunction must derive directly
from the prohibited practices (Cour
de Cassation, 4 December 2001).
In sectors related to new technologies
where the emergence of lively compe-
tition gave rise to abundant disputes,
it is significant that:
• The first cases concerning selective
distribution were brought by way of
summary hearings (T. com. Paris 30
May 2000, confirmed by CA Paris, 13
July 2000); and
• The provisional measures laid
down in Article 12 of the order of
1986 (Article L.464-1 of the Commer-
cial Code) have been widely used
(Conseil de la Concurrence, 18 Febru-
ary 2000, France Télécom / 9 Télécom
Réseau).
The Supreme Court has considered
that the existence of facts held to be the
direct reason for the infringement is
sufficient to justify granting protective
measures (Cour de Cassation, 18 April
2000, France Télécom/Numéricâble).
Claims for damages or declarations.
In relation to actions brought under
Articles 81/82 EC and under French
tort law, the victim of an infringe-
ment must be placed in the position
he would have been in but for the
breach of competition law. Exem-
plary damages are not available un-
der French law.
As a general rule, neither party to an
illegal contract may enforce the con-
tract. Consequently, a party to an
anti-competitive agreement cannot
bring an action for damages on the
grounds of a failure to perform such
an illegal contract (Cour de Cassa-
tion, 29 January 2002, Renault/Bron-
ner), unless it is in a weaker position
than its co-contractor and as such,
does not bear “significant responsi-
bility” for the distortion of competi-
tion (see also below UK: Claims
for damages: Courage v. Cre-
han and box: Co-contrac-
tors and Article 81 EC).
However, the court may
consider that the con-
tract is severable, and
grant remedies on the
grounds of the failure to per-
form the clauses which are not anti-
competitive (Conseil de la Concur-
rence, 9 December 1998, Polygram/
Virgin).
Other issues
The civil courts are not bound by the
decisions of the Competition Council.
However, in practice the courts often
respect the findings of the Council by
ordering a stay of proceedings, where
such findings are likely to have an im-
pact on the substance of the case be-
fore the normal courts and in the inter-
est of the administration of justice
(Tribunal de Commerce Paris, 7 De-
cember 1999, Ufex/Poste).
GERMANY
Basis of claim
The legal basis for bringing a claim
for damages or seeking an injunction
is section 33 of the Act against Re-
straints of Competition (GWB). A
claim can be brought if there is a
breach of a provision of the GWB or a
decision taken by the relevant cartel
authority (the Federal Cartel Office,
the supreme land authorities or the
Federal Ministry for Economics and
Labour) provided the provision or de-
cision concerned protects third par-
ties.
Parties can also bring claims under
sections 823 para.2 and 1004 of the
German Civil Code, in combination
with Articles 81/82 EC.
Types of claim
• As the basis of an application for
interim relief.
• As the basis of a claim for dam-
ages.
• As the basis of a claim for an in-
junction.
Interim relief. The courts will grant
interim relief in some instances. For
instance, the Hanseatic Higher Re-
gional Court (OLG) recently
granted an injunction preventing the
Federal Committee of Physicians
and Health Insurance Funds from is-
suing directives listing certain phar-
maceutical products that should no
longer be used for medical treatment
(Hanseatisches OLG, Pharma Recht
2001, 14). The court found that the
directives prevented, restricted and
distorted competition between
member states and therefore in-
fringed Article 81 EC. Thus, the
claim for an injunction was allowed
in accordance with sections 823
para.2 and 1004 of the German Civil
PRIVATE ANTITRUST REMEDIES
34

Code (BGB), in combination with
Article 81 EC.
However, the civil courts will refuse
an application for interim relief based
on an alleged breach of Articles 81/82
EC if a case dealing with the same
matter is pending before the adminis-
trative courts. The OLG in Düssel-
dorf held that it was not competent to
hear a matter where the plaintiff was
in the process of appealing an admin-
istrative decision on the same matter
by the Regulatory Authority for
Telecommunications and Posts
(RegTP) to the administrative courts
(OLG Düsseldorf, MMR 2002, 316).
It held that if both courts heard the
matter, it could result in either the du-
plication of decisions or conflicting
decisions.
The court held that this would also
apply where the same matter was not
pending before an administrative
court, but an administrative order in
relation to that matter had already
been given against the claimant, and
the claimant failed to appeal this to
the administrative courts. Thus, a
claimant cannot circumvent the final-
ity of an administrative order by ap-
plying for interim relief from a civil
court.
Claims for damages. The OLG in
Düsseldorf dismissed a claim for
damages based on section 823 para. 2
of the BGB and Article 82 EC (OLG
Düsseldorf, OLG Report 2002, 205).
In this case, a telecommunications
company sued a competitor with a
deemed dominant market position
for damages for charging abusive
tariffs. However, the court
held that the competitor
had not breached the
law, as the RegTP had
approved the tariffs and
the competitor was re-
quired to charge them.
Claims for injunction. There
are also recent examples of claims for
injunctions under sections 823 para.2
and 1004 of the BGB, in combination
with Article 81 EC. For instance, in
casesheardbeforetheRegionalCourts
of Cologne and Düsseldorf, the
claimants(severalpharmacists)sought
an injunction to avoid paying the
prices set for a certain type of drug in
an agreement between the National
Associations of Health Insurance
Funds (LG Köln, 21 February 2001,
WuW/DE-R 844; LG Düsseldorf, 11
April 2001, WuW/DE-R 765). In this
instance, the courts held that there was
nobreachofArticle81ECastheagree-
ments did not prevent, restrict or dis-
tort competition.
Other issues
Two recent developments regarding
claims for breaches of Articles 81/82
EC have occurred:
• Reforms to the Law of Obligations
have changed the method for assess-
ing the statutory time limit for bring-
ing such claims; and
• The German Monopoly Commis-
sion has commented on the
Commission’s Council Regu-
lation on Reform regarding
the role of the national
courts in such claims.
Statutory time limit. Since
the reforms to the Law of
Obligations (Schuldrechtsmod-
ernisierungsgesetz) came into effect
on 1 January 2002, the method used
to assess the statutory time limit for
bringing a claim for breach of sec-
tions 823 para. 2 and 1004 BGB in
combination with Articles 81/Article
82 EC has changed slightly. While the
statutory limit for bringing a claim is
still three years (section 195 BGB),
this period (section 199 BGB) starts
running upon expiry of the year in
which:
• The claim arose; and
• The obligee became aware of the
circumstances giving rise to the claim
and of the identity of the obligor or
ought to have become aware of those
matters but for his gross negligence.
Despite the above, a claim is time-
barred:
35
A new Regulation updating Regulation 17 of 1962 on the application of Articles 81 and 82 EC comes into force on 1 May
2004. It includes the following key effects:
• The exemption under Article 81(3) EC will become directly applicable and therefore may be applied by the Commission,
national competition authorities (NCAs) and national courts. This will encourage the application of Article 81 EC by na-
tional courts. However, once the Commission or NCAs have commenced investigations into a case, parallel national pro-
ceedings will be suspended.
• The European Competition Network (ECN) will provide for greater co-operation between NCAs and the Commission,
a system for the allocation of cases, and the sharing of enforcement tasks on the basis of which authority is the most appro-
priate. The Commission will oversee the ECN and ensure that enforcement is consistent and competition rules are uni-
formly applied.
• The Commission will co-operate with national courts and national courts may request information or opinions on ques-
tions relating to Community competition law. NCAs may also submit observations to national courts on issues relating to
Article 81 or Article 82 EC.
Reform of the application of Articles 81 and 82 EC

• Ten years after it arose, irrespec-
tive of the knowledge or grossly negli-
gent lack of knowledge; and
• 30 years from the date on which
the act, breach of duty or other event
causing the loss occurred, irrespective
of when the claim arose and of any
knowledge or grossly negligent lack
of knowledge.
Council Regulation on Reform. The
Monopoly Commission (Monopolk-
ommission), an independent adviser
to the Federal Ministry of Economics
and Labour regarding changes in
competition law, recently com-
mented on proposals by the Commis-
sion’s Council Regulation on Reform
regarding the role of national civil
courts in claims arising out of a
breach of Articles 81/82 EC or the re-
spective national provisions. The
Monopoly Commission takes the
view that the Commission’s recom-
mendation that civil court claims be
encouraged will probably not foster
competition in Germany, in light of
some domestic civil law require-
ments, for example, the burden of
proof. However, changes to the civil
law system itself, such as the imple-
mentation of a US-style pre-trial dis-
covery procedure would be effective.
Nevertheless, it seems unlikely that
there will be any significant changes
to the German system in the foresee-
able future.
ITALY
The criteria used by Italian courts to
assess the abuse of a dominant posi-
tion have generally adhered to that
laid down by European Court of Jus-
tice (ECJ) case law (TAR Lazio
11/9/2001 no. 7433; TAR Lazio
14/11/2001 no. 9354).
Law no. 57 of 5 March
2001 has modified the
existing local rule on
abuse of economic
dependence (Article 9
Law no. 192 of 18th
June, 1998), expressly
stating that the Italian
Competition Authority
(Autorità Garante della Con-
correnza e del Mercato) may issue
warnings and impose penalties pro-
vided for in the Competition Act
against any company or companies
found liable for abuse of economic
dependence which is relevant to the
protection of competition.
Generally, the Competition Author-
ity has become more proactive in the
decentralised enforcement of EC
competition rules (Provvedimento
no. 10210, 13/12/2001; no. 10981,
18/7/2002).
Basis of claim
When a party attacks an adminis-
trative decision of the Competi-
tion Authority before the
competent administrative
court (TAR Lazio), it can
also claim damages deriving
from the illegitimate decision
(Corte di Cassazione, no.
500/99). Alternatively, a claim for
damages caused by abuse of a domi-
nant position can be brought in the
civil courts.
It is not necessary for the undertak-
ings to be aware that they were in-
fringing competition law; it is suffi-
cient to show that they were aware of
the factual elements of their conduct
(Consiglio di Stato, sez. VI, no. 2199,
26/2/2002). This move towards strict
liability may influence civil law judg-
ments on EU and Italian competition
matters.
As a general rule, damages are per-
mitted by the courts as compensation
for harms effectively suffered by the
plaintiff and not as a deterrent mea-
sure. Thus, the courts have held that a
plaintiff cannot claim damages for
“passing on” any overcharges to a fi-
nal consumer (VHF-Ventana Incen-
tive House v. Juventus F.C. (Corte
Appello Torino, 6/7/2000)). In this
case, the intent to pass on served only
as evidence of the plaintiff’s aware-
ness and participation in the anti-
competitive practice, with the
result that it was awarded
lower damages.
Types of claim. A plaintiff can
rely on competition law argu-
ments to seek:
• Interim measures.
• Damages.
Interim measures. The court can pro-
hibit a party from continuing its con-
duct in breach of competition rules,
but cannot impose any positive duty
to enter into newly formulated con-
tractual relationships (Corte Appello
Roma, 6/2/2001). The Court of Ap-
peal of Milan, responding to a re-
quest for an injunction restraining an
abuse of dominant position, refused
to substitute the contractual terms al-
ready agreed by the parties for terms
of its own making (Corte Appello
Milano, 14/5/2001).
In relation to a situation
of de facto monopoly,
an obligation to supply
to the user has been im-
posed by the court when
the fulfilment of that
obligation is vital for its sur-
vival (Corte Appello Genova, or-
dinanza 21-25/9/2001).
Claims for damages. There have re-
cently been a number of restitution
awards granted by civil courts in
favour of consumers who have taken
action against insurance companies
that have engaged in collusive behav-
iour. Following a decision by the
highest antitrust review court, the
Supreme Administrative Court (Con-
siglio di Stato), to uphold a finding by
the Competition Authority that in-
surance companies were fixing car
damage insurance rates (Consiglio di
Stato, Sez. VI, 26/2/2002, no. 2199) a
number of lower courts have
awarded consumers restitution of in-
surance paid (see Giudice di Pace di
Lavanio, Sent. n. 56/01, 27/9/2002;
Giudice di Pace di Sala Consilina,
Sent. n. 252/01, 31/12/2002).
The insurance companies concerned
appealed to the Supreme Court, claim-
ing that Article 33 of the Italian Com-
petition Act (Law no. 287 of 1990) at
first sight provides that the Courts of
Appeal have exclusive competence to
decide actions for damages (Corte
Cassazione, no. 17475/02, 27.6.2002).
The court rejected the appeal, holding
that the lower civil courts have the
power to decide such matters. The
judgment, however, is no model of
clarity and contains some dicta which,
if taken literally, would have dramatic
effects. For instance:
36

• Only companies party to an agree-
ment would be able to take action for
damages or to have the agreement de-
clared null and void under the Com-
petition Act; and
• Consumers seeking damages
would need to prove more than direct
harm caused as a result of an anti-
competitive horizontal agreement.
The Supreme Court is expected to ad-
dress this issue again soon, and it
seems likely that it will take the op-
portunity to clarify its position.
Other issues
The courts will order a stay of pro-
ceedings, if necessary. In Consorzio
Industrie Fiammiferi (TAR Lazio,
4/4/2001, no. 2919) TAR Lazio sus-
pended proceedings relating to an ac-
tion for annulment of a decision by
the Competition Authority, in order
to wait for a preliminary ruling by the
ECJ.
SPAIN
Basis of claim
The direct application of EC compe-
tition rules by civil courts is a very re-
cent development in Spain. Up until
2000, civil courts could not find a
contract null and void for breach of
Articles 81/82 EC, or award damages
on this basis, without a previous dec-
laration from the Spanish Competi-
tion Tribunal that a breach had oc-
curred (Tribunal Supremo (Civil
Chamber) of 30 December 1993
(CAMPSA)).
On 2 June 2000, for the first time,
the Spanish Supreme Court (Tri-
bunal Supremo) applied EC compe-
tition rules directly in order to de-
clare a contract void for breach of
Article 81 EC (Tribunal Supremo
(Civil Chamber) of 2 June 2000
(DISA)). The court held that clauses
that breach Article 81 EC and do not
benefit from a block exemption are
unenforceable. Moreover, the entire
agreement is void if the unenforce-
able clauses are essential for the con-
clusion of the agreement and cannot
be pencilled out. As the defendant
concluded in bad faith a contract
which was null and void from the
outset, the Supreme Court also held
that the plaintiff was entitled to
claim damages against the defen-
dant.
Types of claim
Since 2000, the civil courts have dealt
with a number of different types of
claim for breach of Articles 81/82 EC,
although none of the judgments out-
lined below led to the award of dam-
ages:
• An appeal court declared that a
non-compete clause concluded in the
framework of a distribution agree-
ment that did not come within the
scope of any block exemption was
void. In that case, the court expressly
declaredthatArticle81ECwasnotap-
plicable as the restriction did not affect
trade between member states, and ap-
plied the equivalent Spanish rule
(Audiencia Provincial de
Barcelona of 8 May 2000
(Nike/Cidesport)).
• The Supreme Court declared
that an agreement restrictive of
competition was fully enforceable
as it had been notified to the Com-
mission after the accession of Spain to
the EC and thus enjoyed provisional
validity (Tribunal Supremo (Civil
Chamber) of 21 February 2000
(Jadsa/Iveco-Pegaso)).
• Civil courts have assessed distribu-
tion agreements in the petrol sector
under Article 81 EC, concluding that
the contracts were not void as they
benefited from the block exemption
currently in place. In this context,
petrol stations’ exclusivity provisions
of 35 years (Tribunal Supremo (Civil
Chamber) of 15 March 2001 (Gabail
Oil/Petronor)) and 25 years (Audien-
cia Provincial de Madrid of 6 June
2001 (Gueygar/Repsol)) were deemed
justified to recuperate the invest-
ments made by the franchisor. In ad-
dition, a court of appeal rejected a
claim that a petrol distribution agree-
ment involved retail price mainte-
nance (Audiencia Provincial de Va-
lencia of 7 April 2001 (Total/
Petroalquid)).
• Civil courts have confirmed that
they are prepared to strike a balance in
order to decide when a certain clause,
restrictive of competition, can be pen-
cilled out of the main agreement,
which can then remain in force (Audi-
encia Provincial de las Palmas of 8
March 2001 (Carmen F.A./Disa)).
Given that the civil courts have only
recently begun directly applying Arti-
cles 81/82 EC there are as yet no ex-
amples of cases in which a civil court
has granted interim relief based on a
breach of those provisions.
UK (ENGLAND AND WALES)
Basis of claim
There have been no awards of dam-
ages for breach of UK or EC compe-
tition law in the English courts to
date. However, judgment is ex-
pected this year in two major cases in
which damages claims have been
made: Arkin v Borchard
Lines and Courage v
Crehan (see below
Claims for damages
and box: Co-con-
tractors and Article
81 EC). The Compe-
tition Act 1998
(Competition Act)
mirrors Articles 81 and 82
EC in its Chapter 1 and 2 prohibi-
tions respectively insofar as there is a
restriction of competition within the
UK. Currently, claims for damages
or other relief based on breaches of
UK or EC competition law must be
brought before the High Court.
However, the Enterprise Act, which
comes into force in spring or summer
2003, will allow claims for damages
for breaches of UK or EC competi-
tion law to be brought before a spe-
cialist Competition Appeal Tribunal
(CAT) in cases where an infringe-
ment decision has been made by the
Office of Fair Trading (OFT) or the
Commission (or on appeal). Speci-
fied bodies, for example, the Con-
sumers’ Association, will be able to
bring representative claims before
the CAT on behalf of two or more
customers.
Types of claim
• As the basis of a claim for dam-
ages: this may be by a third party to
an agreement, for example, a pur-
chaser from a cartel, or a party to an
anti-competitive agreement (see
37

Claims for damages below), or a
claim relating to the abuse of a domi-
nant position.
• As the basis of a defence to a claim
(the classic “Euro-defence”).
• As the basis of an application for a
final or an interim injunction to pre-
vent a breach of the competition
rules, for example, to prevent a re-
fusal to supply by a dominant under-
taking.
Claims for damages. In Hendry v The
World Professional Billiards and
Snooker Association Ltd [2001]
EuLR 770 the claimants, who wanted
to set up a rival series of snooker
tournaments, challenged the
WPBSA rules as being in
breach of Chapters 1 and 2
of the Competition Act
and Articles 81 and 82 EC.
The court held that the
WPBSA’s rule, which pre-
vented players from playing in
tournaments unless they were
sanctioned by the WPBSA, did breach
these provisions and was therefore
void. However, there was no basis for
a claim in damages since the
claimants had suffered no loss.
In Arkin v. Borchard Lines [2000]
EuLR 232, the claimant alleged that
the defendants, operators of con-
tainer transport services to and from
Israel, had entered into agreements
for the sharing of cargoes and the set-
ting of common tariffs in breach of
Articles 81 and 82 EC and claimed
damages. The defendants’ applica-
tion to strike out the claim failed on
the basis that there was a realistic
prospect of the claimant establishing
anti-competitive practices on the part
of the defendants. Judgment on the
substantive issues is due later this
year.
In 2001, the ECJ in Courage Ltd v
Crehan (Case C-453/99, [2001] ECR
I-6297) confirmed that a party to a
contract which is in breach of Article
81 EC can sue his co-contractor for
damages in circumstances
where the claimant is in a
markedly weaker position
than the other party and
his power to negotiate is
compromised (see also
box: Co-contractors and
Article 81 EC). Trial on the
substantive issues, including
damages, started in February. It
remains to be seen whether this will
become the first case in which dam-
ages are awarded for breach of com-
petition law in the UK.
Defences to claims. In World Wide
Fund for Nature v World Wrestling
Federation [2002] UKCLR 388, the
court granted an injunction to the
World Wildlife Fund to enforce an
agreement with the World Wrestling
Federation, under which the Federa-
tion agreed not to use the initials
WWF except in limited circum-
stances. The court rejected the Feder-
ation’s claims that the agreement was
in breach of Article 81 EC. The Court
of Appeal upheld the judgment on ap-
peal.
IntelCorp v VIA Technologies Inc &
anr [2002] EWCA Civ 1905 arose
when Intel alleged that VIA had in-
fringed its patents. VIA argued in
defence that Intel was attempting to
compel it to enter into a licence
agreement containing restrictions
which were contrary to Article 81
EC, and that Intel’s refusal to grant a
patent licence was an abuse of a
dominant position contrary to Arti-
cle 82 EC. Intel’s application for
summary judgment succeeded at
first instance, but was overruled by
the Court of Appeal. It concluded
that the allegations of anti-competi-
tive conduct against Intel should
proceed to trial, stating that “if what
VIA alleges is made out then the
dominance of Intel in the world-
wide market in the important and
developing technology for PCs is
buttressed by its enormous portfolio
of patents and restrictive licensing
policy. This may be true of others
but in the case of this technology the
commercial and technical require-
ments and compatibility of hard-
38
The European Court of Justice’s (ECJ) judgment in Courage Ltd v. Crehan (Case C-453/99, [2001] ECR I-6297) has con-
firmed that a party to a contract which is in breach of Article 81 EC can sue his co-contractor for damages in certain circum-
stances (see also main text: UK: Claims for damages). This overturns previous case law on claims for breach of Article 81.
In the long-standing dispute between pub tenants and brewers over the legality of beer tie agreements in the UK, the Court
of Appeal had held that English law did not allow a party to an illegal agreement to claim damages from the other party. On
a reference, the ECJ confirmed that a party to a contract which is in breach of Article 81 EC can sue his co-contractor for
damages, so long as the other party was significantly responsible for the breach.
The ECJ ruled that, in considering whether to award damages to a co-contractor for breach of Article 81 EC, national courts
should take into account the economic and legal context in which the parties find themselves and the respective bargaining
power and conduct of the parties to the contract. In circumstances where a party to a contract is in a weaker position than
the other party, such as to compromise or eliminate his freedom to negotiate the terms of his contract and his capacity to
avoid or reduce the loss, and that contract is in breach of Article 81 EC, he may sue his co-contractor for damages. Commu-
nity law allows national law to prevent a party who is found to bear “significant responsibility” for the distortion of compe-
tition the right to obtain damages from his co-contractor.
Co-contractors and Article 81 EC

ware and software confers on the in-
dustry leader an even more impreg-
nable position.” In the Court of Ap-
peal’s view, a trial was needed to
establish the facts and resolve the
question and the “momentous” is-
sues raised by the proceedings were
not considered to be questions of
law suitable for summary treatment.
Injunction applications. In Claritas
(UK) Ltd v The Post Office and Postal
Preference Service Ltd [2001] UKCLR
2, the claimant sought an interim in-
junction to prevent the Post Office
abusing its dominant position in the
market for mail deliveries by sending
mail surveys seeking information
about mail order customers using the
Royal Mail branding. It alleged that
this was a breach of the Competition
Act. The application was refused on
the ground that there was no abuse in
the market in which the Post Office
was dominant.
However, subsequently a complaint
was made to the OFT, which decided
that there were sufficiently close links
between the mail market and the
market for consumer data to merit an
investigation.
In Jobserve Ltd v Network Multime-
dia Television Ltd [2002] UKCLR
184, the Court of Appeal upheld the
grant of an interim injunction to
Network to restrain Jobserve from
abusing its dominant position in
breach of the Competition Act. Job-
serve and Network both operated in-
ternet websites providing a service to
IT recruitment agencies. Jobserve
threatened to refuse to allow agen-
cies to advertise on its website if they
also advertised vacancies on the Net-
work website. The Court of Appeal
upheld the decision at first instance
that there was a serious question to
be tried both as to whether Jobserve
had a dominant position in the rele-
vant market and whether it had
abused that position. The court held
that “abuse of a dominant position is
a complex question of mixed fact
and law, which should be deter-
mined at trial on the basis of tested
oral and documentary evidence and
rival submissions, rather than in the
summary setting of an application
for an interim injunction”.
The grant of the injunction at first
instance and, in particular, the
Court of Appeal’s approach to abuse
cases will serve as encouragement to
claimants seeking to rely on a breach
of competition law in the English
courts.
However, a subsequent application
for interim relief based on abuse of a
dominant position was refused in
Getmapping plc v Ordinance
Survey [2002] UKCLR 410.
Getmapping sought an in-
terim injunction to compel
the defendant to use the
claimant’s images on its
website. It claimed that the
defendant was leveraging its
market power in the mapping
market to gain a competitive advan-
tage in the imagery market in breach
of Chapter 2 of the Competition Act.
Mr Justice Laddie ruled that the
claimant had no credible case and re-
fused the application.
In Suretrack Rail Services Ltd v In-
fraco [2002] All (D) ER 26 the
claimant failed to be selected to pro-
vide a service to subsidiary compa-
nies of the defendant following a ten-
der process and it claimed that this
was in breach of Chapters 1 and 2 of
the Competition Act. The court held
that the claimant had failed to show
that the defendant’s decision could
not be objectively justified and dis-
missed the application for interim re-
lief. Referring to his judgment in
Getmapping, Mr Justice Laddie made
clear that if the case was weak, it
would not be right to grant interim
relief no matter how strong the bal-
ance of convenience was in the appli-
cant’s favour.
Other issues
A claimant who can rely on a Com-
mission decision on breach of Article
81 or 82 EC (or an OFT decision on
breach of the Competition Act) will
have a major advantage in national
court proceedings.
In Masterfoods v HB Ice Cream (Case
C-344/98 [2000] ECR I-11369), the
ECJ held that a national court must
not reach a decision which is contrary
to an existing Commission decision.
Further, although the national courts
have the power to apply Articles 81(1)
and 82 EC, the Commission cannot
be bound by such decisions. In cir-
cumstances where the Commission’s
decision is appealed, the court must
either stay the proceedings and await
the decision of the Community
courts, or make a preliminary refer-
ence.
In Synstar Computer Services
(UK) Ltd v ICL (Sorbus) And
Another [2001] UKCLR
585, the court granted an
immediate stay of the liti-
gation pending the deci-
sion of the Competition
Commission Appeal Tri-
bunal on an appeal from a
decision of the OFT and made
it clear that parallel proceedings be-
tween the same parties on substan-
tially the same issue were to be dis-
couraged.
In Morgan Stanley Dean Witter Bank
Ltd v Visa International Service Asso-
ciation [2001] All ER (D) 18, the court
granted an immediate stay of the
claim of breach of Articles 81 and 82
EC pending the outcome of the Com-
mission investigation on the same
facts.
US
Over the past year, US jurisprudence
regarding private antitrust actions
has continued to evolve, with further
refinement of the reach of the an-
titrust laws. A number of develop-
ments have centred on the parameters
to be satisfied by a plaintiff in order to
bring a private action, including:
• The permissible categories of po-
tential plaintiff.
• The definition of antitrust injury.
• Making the causal link between
the alleged injury and the conduct of
the defendant.
• The need to demonstrate that
damages are based on concrete injury
(as opposed to a significant risk of in-
jury in the case of injunctive relief).
On a procedural point, a court adjudi-
cating a defendant’s motion to dismiss
39

a complaint for lack of standing must
accept as true well-pleaded allegations
of the plaintiff in its complaint (In re
Public Offering Fee Antitrust Litig. (2d
Cir. 13 December 2002)).
The potential plaintiff
Several new decisions have explored
different categories of potential plain-
tiffs seeking to bring private antitrust
actions. Proper plaintiffs can include:
• Potential entrants, if they can prove
both an intention to enter the market
and preparedness to do so. Demon-
strating factors include background
and experience in the new market, fi-
nancial capability and affirmative
steps taken in anticipation of entry (see
Andrx Pharm., Inc. v. Bioval Corp
Int’l (D.C. Cir. 2001) and Accord Eli
Lilly&Co.v.ZenithGoldlinePharm.,
Inc. (S.D.Ind. 2001)).
• Customers of competitors of the
defendant (Law Offices of Curtis V.
Trinko, LLP v. Bell Atl. Corp. (2d
Cir. 2002)).
• Employees against their employers
or a group of employers in a common
trade. Standing results from re-
straints of competition in the labour
market (Eichorn AT&T Corp. (3d
Cir. 2001)).
Defining antitrust injury
The antitrust injury suffered must:
• Be more than harm to an individ-
ual business; it must be the type of
injury the antitrust laws are de-
signed to protect - competition in the
market. Pleading simply injury to
one’s business is insufficient. Indeed,
even the fact that a plaintiff may be
driven out of business is not suffi-
cient (42nd Parallel North v. E.
Street Denim Co. (N.D. Ill. 2001)).
This principle recognises that in the
most competitively vigorous mar-
kets, one competitor is likely to suf-
fer some economic harm (Mathias v.
Daily News, LP (S.D.N.Y. 2001)).
Other conduct which does not nor-
mally support a finding of an an-
titrust injury includes intrabrand re-
straints (Watkins & Son Pet
Supplies v. Iams Co. (2001)) and
conduct which leads to lower prices
(Pool Waters Products v. Olin Corp
(9th Cir. 2001)).
40
This article can be found on PLC
Global Counsel Web at www.
practicallaw.com/A28534. The following information can also be found at
www.practicallaw.com:
Know-how topics
Competition www.practicallaw.com/T68
Merger control www.practicallaw.com/T622
Cross-border: competition www.practicallaw.com/T641
Policy and reform: competition www.practicallaw.com/T646
Procedure and enforcement: competition www.practicallaw.com/T620
Practice Manuals
Handbooks
Articles
Private antitrust remedies: Part 1 www.practicallaw.com/A17036
Private antitrust remedies: Part 2 www.practicallaw.com/A17561
Class actions www.practicallaw.com/A21592
From dawn to dusk:
criminalisation of hard-core cartels www.practicallaw.com/A20278
Transatlantic antitrust co-operation:
paving the way for success www.practicallaw.com/A25522
Time to reflect – on the future www.practicallaw.com/A19904
Getting tougher:
the Merger Task Force 10 years on www.practicallaw.com/A16269
US merger review: changing at the edges www.practicallaw.com/A17035
Moving the global competition
agenda forward www.practicallaw.com/A15926
Strategic communications in the merger
review process www.practicallaw.com/A18390
EU merger regime: pressure to reform? www.practicallaw.com/A15424
Weblinks
Recent Developments in European Competition Law: Vertical and Horizontal
Agreements ACCA Docket July/August 2001
www.acca.com/protected/pubs/docket/ja01/eucompete1.php
Related information

One type of injury that squarely falls
within the type that the antitrust laws
are designed to protect is prevention
of market entry. Successful preven-
tion of market entry can have the ef-
fect of artificial maintenance of
higher, or supra-competitive pricing
(see Andrx Pharm., Inc. v. Bioval
Corp Int’l (D.C. Cir. 2001)). Threats
of conduct do not support a claim
(RSA Medi, Inc. v. AK Media Group,
Inc. (1st Cir. 2001)).
• Occur to business and property
(Berlyn, Inc. v. The Gazette Newspa-
pers, Inc. (D.Md. 2001) (where a pri-
vate citizen affected by the defen-
dant’s commercial conduct did not
have cognisable injury to business or
property).
• Occur in the US. Conduct under-
taken in foreign markets that “di-
rectly affects the competitiveness of
[US] domestic markets” creates ac-
tionable injury. The injury of a par-
ticular plaintiff need not be domestic
(Kruman v. Christie’s Int’l plc (2d
Cir. 2002)). Where there is no effect
on domestic markets, there is no
standing (Turicentro, S.A. v. Am.
Airlines Inc (3d Cir. 2002)).
The plaintiff need not always plead a
relevant market or market power in
order to establish standing. US law
recognises that certain conduct, such
as horizontal price-fixing, is so perni-
cious that it is treated as a per se vio-
lation of the antitrust laws (In re Mer-
cedes-Benz Antitrust Litig. (D.N.J.
2001)).
Making the causal link
After sufficiently alleging
injury, the plaintiff must
connect that injury to con-
duct of the defendant. In
many aspects, proximate
cause turns on the direct re-
lationship of the injury and the ac-
tion.
A “plaintiff who complain[s] of harm
flowing merely from the misfor-
tunes visited upon a third per-
son by the defendant’s acts
generally” lacks standing
(Assoc. of Wash. Public
Hosp. District v. Philip
Morris Inc. (9th Cir. 2001)).
Inquiry into the “directness” of
the injury is flexible and the lack of
a purely direct relationship between
conduct and injury may not in all
cases vitiate an antitrust claim.
Rather, a claim lacks standing where
the “injury derives from and is mea-
sured by another’s more direct in-
jury” or where “layers of superior
plaintiffs” exist (Andrx Pharm., Inc.
v. Bioval Corp Int’l (D.C. Cir.
2001)). The more removed a party is
from the offending sale, the less
likely the court is to find the requi-
site antitrust injury (Loeb Indus.,
Inc.v. Sumitomo Corp. (7th Cir.
2001)).
Concrete damages
The last area of standing is damages.
Damages can neither be speculative,
nor derived from some abstract con-
ception. Moreover, where an
action in equity lies in
conjunction with an ac-
tion for damages, the
equity claim may be
enough to avert a
standing defence (see,
for example, Andrx
Pharm., Inc. v. Bioval
Corp Int’l (D.C. Cir. 2001)).
Damages involving pricing across
several purchasers more than three
transactions removed are too specu-
lative to compute (Loeb Indus.,
Inc.v. Sumitomo Corp. (7th Cir.
2001)).
However, the plaintiff need only
demonstrate a significant threat of
injury for injunctive relief, rather
than the more concrete injury re-
quired for damages (Lake Hill Mo-
tors, Inc. v. Jim Bennet Yacht Sales,
Inc. (5th Cir. 2001)).
41
The country sections were written by the following contributors, all of whom
are at Clifford Chance:
• France: Michel Debroux and Lucia Pereira, Paris
• Germany: Edwin Sonnenschein and Torsten Kreitlow, Düsseldorf
• Italy: Cristoforo Osti and Mario Guglielmetti, Rome
• Spain: Miguel Odriozola and Belen Irissarry, Madrid
• UK (England and Wales): Elizabeth Morony and Ingrid Cope, London
• US: Gary Carney and Timothy J Cornell, New York
Contributors
www.practicallaw.com/global

EUPrivLitig_PrivateAntitrustRemediesMarch2003

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