Abstract damages

On 16 February, the Court of Justice ruled in the trucks case at the request of the Spanish court in the case of Tráficos Manuel Ferrer SL and Mr D. Ignacio v Daimler AG on the abstract damages.[1]

Pursuant to Article 17(2) of the Antitrust Damages Directive, a national court can itself estimate the damage resulting from a cartel if it is practically impossible or excessively difficult to accurately estimate the damage suffered on the basis of the available evidence.

The Court of Justice has now ruled that a national court may not award such abstract damages if the impossibility to specifically determine the damages is the result of the applicant’s inaction. The Court found that the Antitrust Damages Directive provides for instruments to eliminate the inequality in the provision of information between a cartelist and a victim. In particular, the Court mentioned the possibility of requesting disclosure of evidence on the basis of Article 5 of the Antitrust Damages Directive. Only if the victim has sufficiently availed itself of these possibilities can the court proceed to an abstract estimate of the damage. The national court must determine whether the claimant has availed itself of that possibility sufficiently.

[1] Court of Justice, 16 February 2023, ECLI:EU:C:2023:99 (Tráficos manuel Ferrer SL/Daimler).