Estimating Damages to Competitors from Exclusionary Practices in Europe: A Review of the Main Issues in the Light of National Courts’ Experience

Abstract

The paper reviews the major issues in the estimation of damages from exclusionary behaviour that arise from the practice of national courts in Europe. Types of damages are discussed, and the methods employed in their estimation analysed on the basis of a detailed examination of a number of cases. It is shown how courts efficiently draw upon their experience in other areas of commercial damages, often using informal methods for assessing damages, which combine a number of means of proof. Formal methods are used as well, such as “before and after” and “yardstick” methods. For the latter, a two-stage test for legal acceptability is inferred from case law. It is concluded that European Commission's efforts in fostering private actions for this type of damages are useful, but they should primarily address legal issues - such as mitigation - that create significant differences across countries: there is a limited need for guidance by the Commission on damages estimation techniques.