INTRODUCTION Contributed by: Franz Hoffet, Homburger
competence to estimate the quantification of the harm suffered due to the “practical impossibility of assess - ing the harm” for the plaintiffs. This was particularly the case where the impossibility to quantify the harm arose from the geographical scope of a cartel, its duration and the complexity of the products. This made it difficult to determine an appropriate counter - factual scenario. The Spanish Supreme Court went on to refer to the practice of other European courts, including the CAT, when it came to estimating dam - ages. The Spanish Supreme Court held that since the minimum foreseeable damage had been “prudently set by most courts at 5% of the cost of the trucks”, this should be the starting point of its estimation. Another example of plaintiff-friendly court decisions are recent rulings by German courts which will make it easier for victims of competition law infringements to enforce their claims in German courts by assign - ing them to special purpose vehicles (SPVs) which then litigate the assigned claims as a sole plaintiff. In 2021 and 2022 already the German Federal Court of Justice held that the assignment of multiple claims to an SPV does not generate a conflict of interest. Under the German Legal Services Act (the RDG; which serves to ensure that legal services are only provided by qualified individuals and entities) entities which are not law firms are required to obtain a special licence before providing collection services. The RDG was amended in 2021 to expressly allow registered legal service providers to assess claims. In 2024, two German courts of appeal held that legal services pro - viders’ qualitative assessments of antitrust damages claims are covered by their collection licence under the RDG. The two cases concerned both a follow-on and a standalone claim. The German Federal Court of Justice still must issue a final judgment on wheth - er the combined enforcement of antitrust damages complies with the RDG. A plaintiff-friendly decision is expected in light of the ECJ’s guidance. The ECJ held in a case referred by the Dortmund regional court, that national rules preventing victims from assigning anti - trust damages claims to a legal service provider for collective enforcement – even in cases without a bind - ing infringement decision by a competition authority – would violate the effectiveness principle unless the national law provides an alternative mechanism for bundling individual claims and the pursuit of an indi -
vidual damage would be impossible or excessively difficult. Yet another example for the ECJ’s plaintiff-friendly stance is a recent decision in which it held that a par - ent company can be sued in its place of residence for damages suffered by a private plaintiff as a con - sequence of a subsidiary’s antitrust infringement in a different member state. In 2014, Heineken’s Greek subsidiary was fined by the Greek Antitrust Authority for unlawfully forcing wholesalers and distributors to favour its brands. In 2017, a competitor of Heineken’s Greek subsidiary brought a follow-on action in the Netherlands where Heineken’s parent company is domiciled, against both Heineken and its Greek sub - sidiary, seeking damages. The Dutch Supreme Court referred the question of jurisdiction to the ECJ. Under the applicable provision of the Brussels Regulation (Article 8 (1)), if there is a close connection between claims in an international context and a risk of irrec - oncilable judgments arising from separate court pro - ceedings, the defendants can all be sued before the court in the country where one of them (the so-called anchor defendant) is domiciled. The ECJ applied the approach of the European Commission when impos - ing fines for breaches of EU Competition Law and found that the parent company can be sued in its home country as long as it has decisive influence over the subsidiary which has committed the competition law infringement unless the subsidiary decides inde - pendently on its own conduct in the market. Under new case law there is a presumption that decisive influence is exercised where the parent holds all or Similar to in the EU – where thousands of hotels have filed a damage claim against the OTA platform Book - ing.com for excessive pricing – platforms are under pressure in respect of private litigation in the US as well. For example, Apple is being sued for allegedly illegal restraints in competition in its app store dis - tribution and billing services. A new claim has been brought by a consumer class for alleged monopolisa - tion of app distribution resulting in overcharges on IOS apps and in-app purchases. Another platform-relat - ed litigation has been brought against the electronic medical records provider Epic Systems. It is alleged almost all of the capital in the subsidiary. Focus on Tech Companies in the USA
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