The UK High Court allows a plaintiff to amend its claim and introduce pleas on the counterfactual which were not originally included in the complaint to the European Commission (Deutsche Bahn / MasterCard)

Illegal counterfactuals: bringing in new claims by the backdoor?* It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful elements: see e.g. Albion Water Ltd v Dwr Cymru [2013] CAT 6. In a normal case, C will claim damages, arguing – let’s say – that D abused a dominant position by imposing discriminatory prices. D defends the claim on the basis that, absent any abuse, it would have set prices at a certain (high) level. C replies that those prices too would have been discriminatory – i.e. the counterfactual is inappropriate. In other words, the legality of the counterfactual normally becomes an issue when the

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  • Blackstone Chambers (London)

Quotation

Tom Coates, The UK High Court allows a plaintiff to amend its claim and introduce pleas on the counterfactual which were not originally included in the complaint to the European Commission (Deutsche Bahn / MasterCard), 11 December 2015, e-Competitions Bulletin December 2015, Art. N° 80136

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