NEWSLETTER-2017

81 COMPETITION LAW damages resulting from umbrella pricing; whereas, the US courts do not favor them. The position taken by the EU courts is specifically im- portant as the Directive, in contrast with its explicit regulations on the passing-on defense and indirect purchaser rule –other highly debated issues of private competition enforcement- does not regulate the issue of the umbrella effect. The first thorough elaboration on the umbrella effect by the EU courts happened when the matter was referred to the ECJ as a prelimi- nary question in Case C-557/12, Kone and others v ÖBB-Infrastruktur AG . In 2007, several undertakings were imposed monetary fines by the European Commission and the Austrian Kartellgericht for form- ing a cartel in the installation and maintenance of the elevators and escalators market. Later on, ÖBB Infrastruktur Aktiengesellschaft, a subsidiary of the Austrian Federal Railways, brought a follow-on ac- tion against the cartel members seeking compensation for its elevator purchases. However, the claimant also claimed damages for its purchases outside the cartel, and a preliminary question was referred to the ECJ, solely, for this part of the whole claim. According to the respondents, there was no adequate causal link between the damage and the anti- competitive conduct, and such claim fell outside of the protective scope of the norm. Upon such referral, the Advocate General Kokott stated in her opinion delivered on January 30, 2014 that in fact, there was an adequate causal link present in the case at hand, so that the damages claimed were foreseeable by the cartel members, and that it runs counter to the practical effectiveness of competition laws if the national laws categorically deny seeking compensation for damages resulting from umbrella pricing 8 . The judgment 9 followed AG Kokott’s reasoning, by recalling the principles governing the right of any person to claim damages for the harm caused by a contract, or conduct liable to restrict or distort competition. The ECJ also discusses its decisions Courage 10 and Man- 8 Opinion of Advocate General Kokott, para. 83. 9 Case C-557/12, Kone AG and others dated June 5th, 2014. 10 Case C-453/999 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and others.