Kone AG v ÖBB-Infrastruktur AG
Members of a cartel can be liable for umbrella pricing, the higher prices charged by non members as a result of the cartel, if the cartel was liable to have that effect.
Facts
Kone and other manufacturers participated in a cartel in the market for lifts and escalators in Austria. ÖBB-Infrastruktur, a subsidiary of the Austrian railways, bought lifts and escalators from companies which were not members of the cartel, but which had set their prices at a higher level because of the cartel, in order to take advantage of the market price set by the cartel. ÖBB sued the cartel members for damages for the higher prices it had paid to the non members.
Legal principle
The Court of Justice held that EU law precludes national law which categorically excludes the civil liability of cartel members for losses resulting from prices which an undertaking not party to the cartel set at a higher level than would have been expected in the absence of the cartel. The victim of umbrella pricing may obtain compensation from the members of the cartel where it is established that the cartel at issue was, in the circumstances of the case and in particular the specific aspects of the relevant market, liable to have the effect of umbrella pricing being applied by third parties acting independently, and that those circumstances and specific aspects could not be ignored by the members of the cartel.
Related cases on private enforcement and damages
- Courage Ltd v Crehan Case C-453/99, [2001] ECR I-6297
- Devenish Nutrition Ltd v Sanofi-Aventis SA [2008] EWCA Civ 1086, [2009] Ch 390
- Inntrepreneur Pub Co v Crehan [2006] UKHL 38, [2007] 1 AC 333
- Le Patourel v BT Group plc [2024] CAT 76
- Manfredi v Lloyd Adriatico Assicurazioni SpA Joined Cases C-295/04 to C-298/04, [2006] ECR I-6619
- Merricks v Mastercard Inc [2020] UKSC 51
- Provimi Ltd v Aventis Animal Nutrition SA [2003] EWHC 961 (Comm)
- Royal Mail Group Ltd v DAF Trucks Ltd [2023] CAT 6
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