In a judgment of June 5, 2014, following a request for a preliminary ruling from the Austrian Supreme Court, the European Court of Justice (ECJ) ruled in favour of extending the liability of a cartel’s members when the effect of the cartel was to incite other market operators to increase their own prices. This judgment is contrary to Austrian legislation, which requires the existence of a contractual link between the cartel’s victim and its members.
After purchasing elevators and escalators from members of the cartel, but also from undertakings outside the cartel, ÖBB-Infrastruktur had sought compensation before the Austrian civil courts for the loss it suffered from having to pay a higher price to an undertaking outside the cartel which had increased its prices to match those of the cartel’s members.
The ECJ considered that, to preserve the practical effect of Article 101 TFEU, it could not be ruled out that a victim of “umbrella pricing” may obtain compensation for its loss, even if the victim did not have any contractual link with the cartel’s members.
However, to obtain this compensation, the victim will have to establish that (i) in view of the circumstances of the case, and particularly the specific aspects of the relevant market, the cartel was liable to have the effect of “umbrella pricing” being applied by third parties acting independently, and (ii) the members of the cartel could not have been unaware of those circumstances and specific characteristics.