Foreseeability of the Harm in Competition Damages Actions

Abstract

In order to obtain compensation for damages, the claimant has to show – according to the requisite legal standard – that an anticompetitive conduct was the cause of the harm claimed. After proving the factual link between the economic loss and the competition law infringement, the claimant also needs to prove that the damage was a normal or foreseeable consequence of the anticompetitive conduct. This test takes different names across Europe but has usually the function of limiting the damages that a tortfeasor may be legally responsible to compensate. The European Court of Justice (ECJ) has also referred to the foreseeability of the harm in the case Kone and Others v OBB-Infrastruktur observing that the defendants could not ‘disregard’ the umbrella effects caused by their anticompetitive agreement and, thus, they were responsible for the consequent economic loss of the claimant. Hence, to be compensable, a harm has to be a foreseeable consequence of the infringement of European Union (EU) competition law. But what does foreseeability mean? What is the standard of proof required? And is there a uniform approach to foreseeability in the EU? This article addresses these questions, analysing the functions of the concept of foreseeability and of the standard of proof required in EU competition law and across Europe, also in light of the most recent case law.