Antitrust

1 1 8 KEY DEVELOPMENTS By the end of 2017, 98 cartel damages claims were reported as having been brought across 12 EU countries, 94 of which were follow-on claims (71 from national competition authority decisions and 23 from EC decisions) and the remaining four of which were brought on a stand-alone basis. 1 According to public sources, 2018 has seen at least approximately 25 cartel damages claims brought across Europe, largely constituting claims in the U.K. following on from the EC's Trucks decision as well as additional claims against Visa and MasterCard regarding their multilateral interchange fees (MIFs). The appetite for pursuing damages claims is therefore continuing. ACTIVE JURISDICTIONS: THE UNITED KINGDOM The U.K. has been one of the most active jurisdictions in antitrust litigation in the last year. In October 2018, the U.K. High Court (HC) made its first award of damages in a follow-on cartel claim in BritNed v. ABB based on ABB's involvement in the Power Cables cartel. Following subsequent review, €11.7 million worth of damages were granted to BritNed, only a fraction of the original €180 million claim (suggesting close scrutiny of the economic evidence presented). The award is nonetheless promising to the multitude of claimants who have brought similar follow-on claims in the U.K. in the last few months. U.K. courts have also been active in ordering broad disclosures of the EC file to claimants in follow-on claims, a trait which has traditionally made the U.K. an attractive damages claim forum. In two separate judgments relating to follow-on proceedings for Trucks, the HC ordered disclosure of: (i) the entirety of the EC's file into a confidentiality ring, running to approximately 32,000 documents out of a total set of 39,000 (save for leniency and privileged material); and (ii) a redacted confidential version of the EC's decision as well as other documents from its file. Permission to appeal the approach in (i) to the U.K. Court of Appeal (CA) was subsequently denied, suggesting that the U.K.'s reputation for permitting broad disclosures is here to stay. The MIFs-related litigation against Visa and MasterCard has also dominated the U.K. antitrust litigation sphere for a number of years, resulting in three contradictory first instance decisions from the U.K. courts: (i) a July 2016 U.K. Competition Appeal Tribunal (CAT) judgment granting £69 million in damages to Sainsbury's against MasterCard; (ii) a January 2017 HC judgment finding that MasterCard's MIFs did not infringe competition law (and would in any event have satisfied the conditions of Article 101(3) Treaty on the Functioning of the European Union (TFEU)); and (iii) a November 2017 HC judgment denying Sainsbury's damages claim on the basis that the U.K. MIFs did not amount to a restriction of competition by effect. After hearing appeals related to all three claims, the CA held in July 2018 that the use of default MIFs without bilaterally agreed interchange fees breached Article 101(1) TFEU and confirmed that the claimants were not required to prove the unlawful level of the MIFs. Instead, relevant EU competition law provisions should be applied to determine whether the default MIFs were either wholly or ANTITRUST LITIGATION 22 C O L L E C T I V E A C T I O N S M A Y A L S O B E M O R E G R E A T LY E N C O U R A G E D F O L L O W I N G A P P R O V A L O F T H E E C ' S S U G G E S T E D C O L L E C T I V E C O N S U M E R C L A I M S R E G I M E EU Antitrust Litigation: An Update

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