Umbrella pricing og den private håndhævelse af konkurrenceretten

Jes Buhl Andersen

Student thesis: Master thesis


The topic for this thesis is private actions for damages due to an infringement of article 101 of the Treaty on the Functioning of the European Union (TFEU). The thesis is based on the ruling C- 557/12 Kone from the Court of Justice of the European Union (CJEU).C-557/12 Kone concerned a situation in Austria in which the company ÖBB-Infrastruktur AG had payed higher prices to a non- cartel member due to the illegal practices from the cartel. The CJEU came to the conclusion in the case, that a national rule prohibiting the right for any individual to claim compensation for harms suffered from a cartel is against the full effectiveness of article 101 TFEU, even in the case of no contractual relationship between the two parties. The situation were the illegal practice of a cartel leads to higher market prices of also non-cartel members is referred to as umbrella pricing. Even though the CJEU in is ruling made it clear that any individual has the right to claim compensation from umbrella pricing, the Court left some obscurity regarding the conditions necessary for prove of causality. In 2014 the European Commission issued Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. The purpose of the directive is harmonization of the national rules governing actions for damages and to ensure effective private enforcement of competition law. The purpose of this thesis is an analysis of umbrella pricing considering the ruling in Kone and the new directive on private action for damages. The analysis of C-557/12 Kone focuses on the challenges with regard to proving damages due to umbrella pricing, and whether the directive improves the incentive for the damaged part to sue for damages. Furthermore the thesis investigates the conditions necessary to facilitate umbrella pricing on a market with three players producing differentiated products, and how it is possible to have a cartel and a non-cartel member with in the same market. The thesis concludes, even though the ruling in Kone allows for customers of non-cartel members to pursue private actions for damages due to loss from umbrella pricing, it is still very unlikely there will be a significant increase in umbrella claims, since the requirement for causality is still unclear.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2015
Number of pages91