Die Oxera-Studie zur Berechnung von Schäden Durch Kartellverstöße – Ein 'Too Economic Approach?' (The Oxera-Study on Quantifying Antitrust Damages – A 'Too Economic Approach?')

On January 19, 2010, the European Commission published a study on the quantification of antitrust damages, jointly prepared by an economic consulting firm and a multi-jurisdictional team of lawyers. This paper reviews the procedural implications of the study and the increasing reliance on economic analysis to quantify harm in private actions for antitrust damages. The author embraces the modular approach proposed in the report towards potential harm caused by competition law infringements, the relevant economic variables and the classification of models and methods. This approach helps prevent technical and substantive inconsistencies by highlighting the fact that identical economic questions arise in different circumstances. Moreover, it simplifies the clear formulation of the points at issue and the appointment of suitable experts. The lawyers’ participation in the study had the positive effect of identifying the field reserved to the primacy of law. Questions of attribution and causality as well as the definition of damages are acknowledged as predetermined by law. However, the study does not sufficiently consider how lawyers approach the issue of quantifying damages. What is missing is a link between the results of the study and the task of lawyers and judges in damages proceedings. The consequences of the economic findings for legislation and the application of substantive and procedural law have been left to further research. The issue of procedural economy has also been almost completely ignored. While the study recognizes the trade-off between precise quantification of damages and facilitating private damages actions it lacks criteria to decide when economic analysis is inappropriate. That might be the case where its costs are disproportionate to the value of the claim at stake, where it is of limited validity (as with models of industrial organization as a basis for computing concrete amounts of damages) or where the necessary data are missing. The study fails to identify simple alternatives to the proposed economic methods and models