Approaches to Considering the Devaluation of Monetary Claims for Damages from Infringements of EU Competition law – A Comparative Law Study
Die Berücksichtigung der Anspruchsentwertung im Zeitablauf bei Schadensersatz wegen Verstößen gegen EU-Kart
Jahrgang 77 (2013) / Heft 3, S. 504-554 (51)
35,70 € inkl. gesetzl. MwSt.
nd and with limitations in the US states, the starting point is up to the discretion of the judge. Besides, the devaluation of cartel damage claims can be offset by awarding consequential damages with respect to the foregone use of funds. All jurisdictions surveyed accept interest payments or losses, respectively, if the claimant proves them on a case-by-case basis. Moreover, especially in France and the US, inflation may be considered implicitly by awards of consequential damages for lost business opportunities. Such heads of damage are recognized in particular with respect to corporate claimants. The variety of national approaches in the EU member states to compensate for the »cost of time« is as such consistent with EU law. Contrary to widespread opinion, European competition law only requires means to offset the devaluation, without imposing prejudgment interest as the only permissible instrument. The dictum in Manfredi is explained by the context of the case the ECJ cited and must be interpreted in a way that is compatible with EU law, allowing national courts to prevent unjust enrichment. However, insofar as a member state chooses prejudgment interest as the primary instrument, the principle of effectiveness requires coverage the inflation rate. De lege ferenda, harmonizing national approaches in the EU would contribute to equal treatment of victims of international cartels and promise more effective private enforcement. However, if one rejects creating a distinct law of damages for cartel victims, the respective harmonization would require considerable intervention in national civil law systems. A comparison of the legal situation in the EU member states and in the US, consisting of distinct federal and state law avenues to compensation, reveals significant differences: While the EU member states try to adequately compensate the »cost of time« in each case, US federal law contents itself with covering up the devaluation of damages claims with treble damages, although some state laws may provide for prejudgment interest under particular circumstances. In practice, the results converge considerably due to lengthy proceedings. Ultimately, both approaches are adequately embedded in the basic decisions of each jurisdiction.