Further boost to private enforcement of antitrust law

Case law in 2024 was characterised by a further boost to private enforcement of antitrust law. Based on Articles 101 and 102 TFEU and the principle of effective enforcement of European law, the Court of Justice of the European Union has deduced far-reaching implications for national law in some cases – including for the period before the Damages Directive came into force (Directive 2014/104/EU).

In the preliminary ruling proceedings on an action for damages brought by the Czech price comparison platform Heureka against Google (judgment of 18 April 2024, C-605/21), the Court of Justice of the European Union provided guidance on how to deal with the statute of limitations. The Court of Justice of the European Union found that the knowledge-dependent limitation period for the antitrust damages claims at issue in the national proceedings due to an infringement of Article 102 TFEU can only begin when the infringement has ended and the injured party has obtained knowledge of the information necessary to bring the action. According to the Court of Justice of the European Union, the Czech law, which provided otherwise, breaches the principle of effectiveness and the requirements of the Damages Directive. This has led to an intensive debate regarding German law as well.

Issues of international jurisdiction are also still in focus: in the MOL decision (judgment of 4 July 2024, C-425/22, see Noerr Insights), the Court of Justice of the European Union rejected the jurisdiction of the courts at the registered office of the only indirectly injured parent company, taking into account the existing case law on the “economic unit” as well (see also judgment of 11 July 2024, C-632/22 – Volvo on the international service of documents). By contrast, Advocate General Kokott argues in her opinion in the Heineken proceedings (26 September 2024, C-393/23) in favour of assuming jurisdiction at the registered office of the parent company, too, in certain circumstances pursuant to Article 8(1) of the Brussels I Regulation.

From a German perspective, developments relating to antitrust class actions are relevant. In his opinion, Advocate General Szpunar argues that effective antitrust enforcement in standalone actions requires access to collective redress. He finds that a fundamental prohibition of a class action debt collection model for antitrust damages claims is inadmissible (C-253/23 – ASG 2), although some questions remain unanswered (see Noerr Insights). The judgment is eagerly awaited and scheduled to be delivered on 28 January 2025.

At the national level, the question of damage quantification remains in the spotlight. It will continue to occupy the trial courts in 2025. In the Trucks IV case (judgment of 9 July 2024, KZR 98/20), the Federal Court of Justice (Bundesgerichtshof) eased the requirements for those harmed by a cartel to substantiate their claims. The Federal Court of Justice ruled that the trial courts have broad discretion in principle under section 287 of the German Code of Civil Procedure (Zivilprozessordnung, ”CCP”) when determining damage. In order for a trial court to be able to determine the damage, the claimant must present (only) the tangible evidence it can easily provide. Depending on the individual case, this does not include submitting its own comparator-based market analysis. However, expert opinions remain relevant because in the Trucks V decision (judgment of 1 October 2024, KZR 60/23), the Federal Court of Justice upheld its previous case law. It made it clear that the trial judge is obliged, based on section 287(1) CCP, to comprehensively assess the expert opinions submitted by the parties in particular and has to consider on this basis whether a separate expert opinion needs to be obtained by the court.

This article is part of the Competition Outlook 2025. You can find all Competition Outlook articles here.