Cleary Gottlieb senior attorney Philipp Kirst contributed the chapter “The application ratione temporis of the Directive’s provisions and conflicting limitation periods under national laws” to the Research Handbook on Private Enforcement of Competition Law in the EU, published by Edward Elgar Publishing.

On March 1, 2023, the French Cour de Cassation (i.e., the French Civil Supreme Court) upheld the Paris Court of Appeals’ (“Court of Appeals”) judgment awarding Digicel €180 million in damages for harm suffered as a result of anticompetitive practices implemented by Orange from 2000 to 2006 in the mobile telephony sector in the French West Indies and Guyana.  However, the Cour de Cassation quashed the Court of Appeals’ finding that interest on the damage award should run from April 1, 2003, given that the harm inflicted to Digicel had not fully materialized at that date.

On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1]  Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First,  the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine.  Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis.  Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights. 

Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. 

On December 7, 2022, the French Supreme Court (“Cour de cassation”) upheld the Paris Court of Appeal’s judgment dismissing Concurrence’s damage claim brought against Samsung Electronics France (“Samsung”).[1] Concurrence claimed that Samsung had abruptly terminated their long- standing commercial relationship.

In the third episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Bruce Hoffman and Leah Brannon about the U.S. enforcement environment for Big Tech, the agencies’ application of Section 2 of the Sherman Act, and the prospects for legislative change.

On December 6, 2022, the Frankfurt am Main Court of Appeal[1] dismissed an action to declare the existence of contribution claims against other cartel members.  The action was filed in an attempt to suspend the limitation periods of upfront contribution claims that arose at the moment when the purchasers of the cartel suffered harm.  

On November 29, 2022, the German Federal Court of Justice (“FCJ”) overturned[1] a decision by the Frankfurt am Main Court of Appeal dismissing a damages action by the insolvent drugstore chain Schlecker.[2]  The FCJ held that, in the case of an anticompetitive exchange of price-related information, there is a factual presumption of causal damage.  The matter has been sent back to the Frankfurt am Main Court of Appeal for a new decision because, in the opinion of the FCJ, it had attached too light weight to a factual presumption. 

On 10 November 2022, the European Court of Justice (CJEU) issued a preliminary ruling[1] on the interpretation of the disclosure obligation under the EU directive that harmonised national rules governing actions for damages for breaches of competition law in EU member states and the UK (the Damages Directive).[2]

On November 10, 2022, in a judgment on a request for a preliminary ruling on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and the scope of its rules on evidence production, the Court of Justice confirmed that national courts could require defendants to disclose evidence that did not exist at the time of the court proceedings (“ex novo evidence”)— by compiling or classifying knowledge, information or data in their possession— rather than to merely produce documents that already exist.[1] In this instance, the applicants were seeking price data to quantify the artificial price increase caused by a cartel. The Court of Justice considered that the need to ensure the effective implementation of EU competition law could justify this interpretation, provided that national courts limited disclosure of ex novo evidence to necessary and proportionate requests. This ruling will increase the burden of follow-on litigation on companies and, in particular, the time and costs of carrying out disclosure.