INTRODUCTION Contributed by: Franz Hoffet, Homburger
Global Overview – Antitrust Litigation in 2025 Major international law firms with antitrust specialist teams expect the rise of private antitrust litigation to continue in 2025. In some of the more important juris - dictions such as the US, Europe and the UK, the focus will be on digital markets where private antitrust litiga - tion before national courts has become a key enforce - ment element in addition to regulatory investigations. In particular, large tech companies have become the target of private claims, even more so since new digi - tal regulatory regimes (eg, EU DMA and UK DMCC) facilitate follow-on and standalone damage claims. The most recent example of such claims against tech platforms is one brought by several thousand Euro - pean hotels against Booking.com for damages suf - fered as a consequence of the platform’s allegedly excessive commission rates. While traditional abuse of dominance arguments still prevail, new innovative theories of harm, including consumer, data protection and environmental claims are now brought forward by plaintiffs in private antitrust litigation. In many jurisdictions, the expectation of significant returns has increased the willingness of investors to finance litigation funding. Major cartel follow-on dam - age cases have benefited from litigation funding and it is expected that this trend will continue and expand internationally. Courts, such as the British Competition Appeal Tribunal (CAT), have recognised the necessity of funding for plaintiffs to be able to bring collective proceedings and have clarified that it lies within the courts’ power to allocate a portion of the damages awarded to a litigation funder’s fees. In Asia, the development of private enforcement is still in an early phase, with Japan experiencing an increase in the number of competition damage claims. These are mostly follow-on cartel damage cases brought after decisions by the Japan Fair Trade Commission. In Japan, there have also been damage claims against directors of companies as a consequence of the com - panies’ decisions not to apply for leniency. Private antitrust damage litigation is picking up even in jurisdictions without developed class action sys - tems. As an example, a group of retail merchants in Switzerland has recently sued Mastercard and Visa for damages in the amount of CHF142 million. The claim
is based on the argument that interchange fees are no longer justified by economic grounds, despite recent amicable settlements between the Swiss Competition Commission, Mastercard and Visa which implicitly recognise the economic need for interchange fees. Finally, as competition regulators have increasingly investigated restraints in labour markets, private anti - trust litigation now also seems to develop a new focus in this area, particularly with respect to no-poach agreements. Plaintiff-Friendly Court Decisions in Europe Europe has seen a number of plaintiff-friendly deci - sions by the European Court of Justice (ECJ) and other European courts over recent months. For example, in Heureka v Google the ECJ had to clarify the application of Article 10 of the Damages Directive on limitation periods. Heureka, a Czech online comparison services company claimed dam - ages from Google in a Czech court in the aftermath of the EU Commission’s 2017 decision on Google shopping. In its Heureka v Google decision, the ECJ clarified that the limitation rules in the Damages Direc - tive do not apply retroactively. The ECJ had to decide whether the Czech time limit of four years had already elapsed before the Czech Republic had adopted the Damages Directive after the 2016 transposition dead - line. The ECJ took a plaintiff-friendly view and reaf - firmed the requirements set out in its Volvo decision. It concluded, applying its earlier cessation criteria, that the Czech limitation period could only have started to run after 2017 when the Commission considered that Google’s alleged abuse of dominance had ended. With respect to the knowledge requirement, the ECJ stressed that the victim must know sufficient infor - mation to be able to bring an action for damages. According to the ECJ, that moment occurs at the date of publication of the summary of the Commission’s decision in the EU Official Journal. Another plaintiff-friendly trend can be observed in the decisional practice of national courts with respect to the estimation of damages. Recognising the difficulty for plaintiffs to prove damages suffered as a con - sequence of anti-competitive conduct, the Spanish Supreme Court in a truck cartel case has confirmed its
6 CHAMBERS.COM
Powered by FlippingBook