Die Berücksichtigung der Anspruchsentwertung im Zeitablauf bei Schadensersatz wegen Verstößen gegen EU-Kartellrecht

Approaches to Considering the Devaluation of Monetary Claims for Damages from Infringements of EU Competition law - A Comparative Law Study. Private enforcement of competition law is on the rise worldwide and at the heart of the legal and policy debate in Europe. According to ECJ case law as stated in Manfredi, persons suffering loss caused by infringements of EU competition law must be able to seek compensation for actual loss (damnum emergens) and for loss of profit (lucrum cessans) plus interest. The third element is very important because proceedings are often lengthy and claims for monetary damages are subject to nominalism. Cartel victims who reclaim the overcharge need to be protected from a devaluation of their claim. This article analyses the respective rules in English, French and German law, examines whether they meet the European law requirements and contrasts the European approach with the US opproach. A first important instrument is lump-sum statutory prejudgment interest. Except for US federal law, all jurisdictions surveyed provide for such interest, albeit at considerably differing rates and excluding compound interest. Inflation is never an explicit determinant of the statutory interest rate. However, Germany and England resort to reference rates that cover inflation under normal economic conditions times. In contrast, the French statutory interest rate has fallen below inflation since 2010. As to the time from which prejudgment interest runs, only German law provides for a uniform statutory starting point. In France, England 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.