“Umbrella pricing” in private enforcement of EU competition law and US antitrust law: another transatlantic divergence?

Abstract:

The present work aims at comparing the assessment of umbrella pricing under US antitrust law and EU competition law in the aftermath of the landmark Kone judgment delivered by the European Court of Justice (ECJ). By comparing the reasoning of the ECJ and of the US federal courts on the availability of damages for the private plaintiffs in umbrella pricing cases, the article discusses whether umbrella pricing could represent a new example of transatlantic divergence between EU competition law and US antitrust law.

The authors demonstrate that umbrella pricing claims have encountered two types of issues: while in the US the main obstacle for an umbrella pricing claim concerns the legal standing of the plaintiff, in Europe the main issue concerns the existence of a direct causal link between the anti-competitive conduct and the harm suffered by the customers of the non-cartelists.

In Kone , the Court ruled that national procedural rules cannot exclude a priori an umbrella pricing claim and introduced a presumption on foreseeability of damages that cartellists would have caused to third parties. However, the Court left to the national courts the task of establishing the nexus of causality between anti-competitive conduct and harm suffered by the purchasers of non-cartellists. In the US, owing to a lack of clear guidance from the US Supreme Court, the federal courts have followed diverging approaches on this issue. In this respect the ECJ’s approach in Kone, if followed by the US courts, could represent another instance of the mutual learning process across the Atlantic in the field of competition law.