OGH Decisions

Antitrust Law / Private Enforcement

OGH Decisions

Court number:
Subject of decision:
9 Ob 44/17m
Uniform subject-matter of the dispute;
Claims based on cartel offences are not based on the same factual and legal ground if they are not derived from a single contract but only from similar contracts, each of which may be assessed differently;
The use of the defendant as joint and several debtor is not sufficient to establish a legal connection between the claims.
1 Ob 104/16z
Jurisdiction of Austrian courts;
Interpretation of Art 5 No 3 EuGVVO in a preliminary ruling procedure:
In an action seeking damages from defendants domiciled in different Member States for a single and continuous infringement, where the harmful event has occurred in respect of each individual allegedly injured party, the action may be brought either before the court of the place where the cartel was formed or before the court of the place where the defendant has its (place of residence);
This case law on cartel damage is also applicable to cases where the claimant is a bank customer who bases his claim for damages on (also) an influence of the defendant on the market contrary to EU law.
4 Ob 95/15x
Indecisiveness of the claim;
Question as to whether each individual cartel infringement must be asserted and proven in order to justify an obligation to pay damages. - No answer in the decision, as there is no reason to do so.
7 Ob 121/14s
Preliminary ruling on Article 101 TFEU:
An injured party to an umbrella-pricing agreement may claim compensation for the damage caused to him by the members of a cartel if it has been proven that the cartel could result in umbrella-pricing by independently acting third parties according to the circumstances of the specific case and, in particular, the peculiarities of the relevant market, and if these circumstances and peculiarities could not be concealed from the cartel participants. It is for the national court to determine whether those conditions are satisfied;
"umbrella pricing" = damage caused by an outsider of the cartel by fixing its prices higher than it would have done without the cartel in view of the machinations of that cartel;
Question referred see 7Ob48/12b.
8 Ob 81/13i
Claims based on cartel offences are not based on the same factual and legal ground if they are not derived from a single contract but only from similar contracts, each of which may be assessed differently;
The use of the defendant as joint and several debtor is not sufficient to establish a legal connection between the claims;
With regard to the problem area of claims for damages arising from cartel infringements, competition rules also have the purpose of preventing market participants from overreaching each other on the market by colluding with cartel members, which is why they qualify as protective laws within the meaning of § 1311 ABGB;
Participation in a prohibited cartel may give rise to joint and several liability of the cartel members for claims for damages derived therefrom;
Even if a protective law is violated, the aggrieved party must claim and prove the occurrence of the damage and its amount.
4 Ob 46/14i
Moreover, whether a competition clause imposes an excessive amount of restrictions on a contracting party without time or place restrictions or whether there is a striking imbalance between the interests of one party to the contract to be protected by the prohibition and the restriction imposed on the other party depends on the circumstances of the individual case and, apart from a blatant misjudgement which does not exist here, does not give rise to a substantial legal question;
In the present individual case: obligation of confidentiality has no directly competition-regulating content.
6 Ob 186/12i
Limitation of a claim for damages derived from a cartel infringement;
The decision of the Supreme Cartel Court is considered by the Supreme Court to have triggered the limitation period.
4 Ob 168/12b
It can be derived from the principle of effectiveness under Union law that the restriction of procedural assistance under §63 ZPO idF Art 15 Z3;
Budget Accompanying Act 2009 would not have been applicable in the concrete case and thus the assertion of the claim would have been possible, but a transfer of the claim to the plaintiff would not have been justifiable.
7 Ob 48/12b
Pursuant to Article 267 TFEU, the following question has been referred to the Court of Justice of the European Union for a preliminary ruling:
Is Article 101 TFEU (Article 81 EC, Article 85 EC) to be interpreted as meaning that any person may claim compensation from cartel members for the damage caused to him by an outsider of the cartel who, in the wake of increased market prices, raises his own prices for his products more than he would have done in the absence of the cartel (umbrella pricing), so that the principle of effectiveness postulated by the Court of Justice of the European Union requires an encouragement under national law?
7 Ob 48/12b
Beschluss
Question as to whether a victim of a violation of a protective law (prohibition of cartels) could bring a staged action under Art XLII EGZPO, whether an indirect customer could also claim damages and whether a claim for damages due to the violation of the prohibition of cartels could be based on excessive prices from non-cartel members.
4 Ob 46/12m
If a damage resulting from a price cartel does not occur with the direct contractual partner of the cartel members but with a third party (as a result of the chosen settlement technique), this damage has shifted to the third party due to the internal relationship between the direct contractual partner of the cartel members and the third party which already existed at the time the damage occurred and can be asserted by the third party in accordance with the principles of third-party damage liquidation.
3 Ob 1/12m
Indecisiveness of the claim
It is unacceptable for the injured party to be left empty-handed only because he no longer has access to the invoices for items purchased many years ago. The plaintiff should benefit from the abstract calculation of damages (as a calculation aid on the basis of an expert opinion) and - in order to avoid a typical state of emergency - from prima facie evidence;
The requirements for proof of damage caused by an infringement of competition should not be too strict;
According to the case-law of the Supreme Court, the question of a possible facilitation of the burden of proof for the plaintiff must be separated from the necessity of making conclusive allegations about the facts giving rise to the claim.
5 Ob 396/11p
Antitrust prohibition provisions are also relevant prohibition norms in terms of damages, since they also have the purpose of preventing market participants from overreaching each other on the market by colluding with cartel members.
Participation in a prohibited cartel may give rise to joint and several liability for damage claims and therefore to the place of jurisdiction of the dispute cooperative.
7 Ob 127/10t
Uniform subject-matter of the dispute;
Claims based on cartel offences are not based on the same factual and legal ground if they are not derived from a single contract but only from similar contracts, each of which may be assessed differently;
The use of the defendant as joint and several debtor is not sufficient to establish a legal connection between the claims.
4 Ob 154/09i
An infringement of the implementation prohibition pursuant to Art. 108 (3) sentence 3 TFEU may give rise to claims for injunctive relief on the part of competitors pursuant to § 1 UWG