Informations and abstract
Keywords: Competition law damages; Reasonable foreseeability.
For the first time ever, the Eu Court of Justice dealt with a case of (alleged) antitrust damages where the claimant was not an undertaking who had purchased goods affected by the anticompetitive agreement, rather a body granting subsidies related to the goods covered by the cartel. The scope of one of private enforcement’s milestones since the Manfredi case – namely that «any person» shall be entitled to seek compensation for damages caused by an infringement of competition law – has been generously extended through the removal of the necessary link between those companies participating in an illicit agreement and their direct or indirect purchasers: in the Otis case, the Court clarified that the «chain» of entities entitled to seek compensation also extends to those subjects who played a role in creating demand in the relevant market. And it is not necessary that the loss suffered by the interested party – in this case an alleged damage for loss of investment chance – has a specific connection with the «objective of protection» pursued by Article 101 Tfeu. The ruling marks a renewed tension between the compensatory function of antitrust damages and a sort of market protection that seems to yearn towards a greater deterrent effect through the extension of subjects entitled to seek compensation. But there it still remains the need to demonstrate the existence of a sufficient causal link between the alleged damage and the relevant conduct, which seems to remain an uphill road. Much ado about nothing?