Brussels, 06/06/2014 (Agence Europe) - Where a cartel causes leading competitors to raise their prices, the members of the cartel may be held liable for the losses caused as a result, even if there is no contractual link with the members of the cartel.
That was the ruling in case C-557/12 on Thursday 5 June by the European Court of Justice in response to questions raised by the Austrian Supreme Court. Following a 2007 cartel case in which the European Commission levied fines that were later upheld by the European Court of Justice (see EUROPE 10950, 10725, 10420, 9689 and 9371), in 2008 the Austrian authorities levied fines on a number of undertakings (including Kone, Otis and Schindler) for operating a price-fixing cartel in Austria. ÖBB-Infrastruktur AG (ÖBB), a subsidiary of Austrian Federal Railways, bought lifts and escalators from undertakings that were not party to the cartel. It is claiming from the members of the Austrian cartel compensation of €1,839,239.74 for losses sustained as a result of ÖBB's suppliers setting a price higher than that which would have been achievable, had the cartel not existed. The Austrian court wanted to know whether cartel members can be held liable for losses even though that is not possible under Austrian law because the supplier that raised the prices in question was not a member of the cartel.
The Court of Justice says yes. It says that any person is entitled to claim compensation for losses suffered where there is a causal relationship between the losses claimed and the cartel at issue. A cartel can have the effect of leading companies that are not a party to it to raise their prices in order to adapt them to the market price resulting from the cartel, a matter of which the members of the cartel cannot be unaware. Market price is one of the main factors taken into consideration by an undertaking when determining the price at which it will offer its goods or services. Accordingly, even if determination of the offer price is regarded as a purely autonomous decision taken by each undertaking that is not a party to the cartel, such a decision may have been taken by reference to a market price distorted by the cartel. Consequently, where it has been established that the cartel is, in the circumstances of the case and, in particular, the specific aspects of the relevant market, liable to result in prices being raised by competitors not a party to the cartel, the victims of this price increase must be able to claim compensation for loss sustained from the members of the cartel. “In these circumstances, the Court of Justice finds that EU law precludes the Austrian legislation to the extent that, with regard to the compensation of loss resulting from a cartel, it requires, categorically and regardless of the particular circumstances of the case, that contractual links exist between the victim and the members of the cartel”. (FG)