CONFERENCE - BELGIAN COMPETITION DAY - ENFORCEMENT OF COMPETITION RULES

Belgian Competition Day - RT2 - Private enforcement : Damage assessment (Brussels, October 21th 2010)

This article reproduces the papers delivered at the second round-table at the Belgian Competition Day in Brussels on October 21, 2010. Dr. Gunnar Niels, author of the fist contribution, presents the report Oxera prepared for the European Commission. He also emphasises the importance of training programs for judges and, giving US and UK practice as an example, of guidance for experts and judges on the use of economic evidence. In the second paper, Dr. Hans W. Friederiszick presents the empirical method applied for damages quantification in the German Cement Cartel case in 2009 and draws general lessons for the use of econometric work in the court room. He highlights the importance of a clear communication by the judge on the applicable standard of proof to the economic expert and its relevance for the choice of an appropriate empirical method. The « tragedy of information asymmetry » in cartel cases, i.e. that the defendants hold the information that the plaintiff needs to proof damages empirically and that the plaintiff holds the information that the defendant needs to proof pass-on, requires well defined procedural rules to allow a robust empirical estimation. Iin the third paper, Prof. Frank Verboven presents the economic findings in respect of passing on defences. He is convinced that there is a good framework to appreciate these defences but accepts that it is not easy to apply. He argues however that the assessment of passing-on defences is in itself not harder than applying the overcharge analysis. In the last paper, Mr. Verougstraete, after noting that judges usually do not faint when they see a graph, pleads for the development at the European Union level of an interface that would help judges to limit the amount of information they have to cope with. He considers that the various economic methods provide the judge with a useful intellectual framework but that it remains the task of the judge and not of the expert to select the methodology on which he holds his judgment. He also points to the degree of uncertainty that is caused by legal issues such as the discussions on causation, the compensation for loss of opportunities (lucrum cessans), etc. He concludes that the outcome of damages cases is likely to remain rather unpredictable as long as there is no sufficient body of case law. The outcome will depend not only on the choice of an economic method, but even more on the available facts and on the way the method is adapted to the available data.

Belgian Competition Day - Round Table 2 [1]Private enforcement : Damage assessment Gunnar NIELS Economist I. Introduction 1. As already mentioned today, a major policy concern is the fact that today victims of EC-antitrust infringements only rarely obtain reparation of the harm suffered. 2. One of the major obstacles to damages actions is the quantification of the damages. In this difficult task of quantification, guidance is needed, both for the benefit of the national courts, as well as for the parties concerned. 3. The Oxera report on quantifying antitrust damages is such a step towards guidance. Several topics of this report will be discussed today. As mentioned in the Oxera report, such guidance needs to consider at least two objectives : (1) finding the most accurate answer

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Hans W. Friederiszick, Gunnar Niels, Frank Verboven, Ivan Verougstraete, Belgian Competition Day - RT2 - Private enforcement : Damage assessment (Brussels, October 21th 2010), février 2011, Concurrences N° 1-2011, Art. N° 34269, www.concurrences.com

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