In a potentially significant opinion (the Opinion), Juliane Kokott (AG Kokott), Advocate General to the European Court of Justice (ECJ), advised the ECJ that parties who did not directly participate in the market in which a cartel operated should be permitted to claim damages from the members of the cartel.
It remains to be seen how the ECJ will approach this issue in its final decision on the matter, but, if followed, this approach could represent a significant expansion of the scope for private damages claims against cartel participants in the EU.
Would-be claimants are nevertheless likely to face significant hurdles in demonstrating causation, however, and it will be for the national courts of member states to determine their own approach to these questions.
Background
The Opinion, which is non-binding, was prepared in the context of a claim brought by Upper Austria for damages arising out of cartel arrangements between Otis, Kone, Thyssenkrupp and Schindler (the cartelists).
The cartelists were
