In the EU, abuse-of-dominance damages claims – actions brought by companies or individuals seeking compensation for harm suffered as a result of a dominant firm’s anticompetitive conduct – have been relatively rare, thanks to competition authorities’ longstanding enforcement focus on cartel behavior. However, recent developments have lowered the procedural and factual hurdles to bringing such damages actions, possibly indicating a reversal of this historical trend.
In an article published by the American Bar Association’s Antitrust Law Section, Analysis Group Vice President Philipp Tillmann describes the changes in the European competition landscape that have allowed abuse damages actions to gain traction. He discusses rulings from the Court of Justice of the European Union (CJEU) – such as one confirming that abuse claimants can participate in collective redress and one preventing the limitation period clock from starting too early – that may have previously prevented private enforcement actions. He also notes that Germany may become a prominent jurisdiction for abuse damages actions, given its competition authority’s recent focus on abuse investigations in digital markets. Dr. Tillmann describes the complexity of the economic analyses necessary to prove or refute abuse-of-dominance damages claims and emphasizes the need for courts to engage in rigorous examination of expert evidence: “These cases will demand complex counterfactual analysis, potentially sophisticated econometric modelling, and careful expert evidence. …[A]buse damages litigation will test the capacity of courts, experts, and parties alike to translate economic theory and evidence into credible legal outcomes.”
Associated People
Philipp Tillmann
Dr. Tillmann is an economist who specializes in the application of microeconomics, econometrics, and statistical methods to litigation matters, investigations, and strategy assignments. He has served as an expert witness and has supported expert witnesses, managed case teams, and conducted analyses in merger, cartel, abuse of dominance, and other matters across a broad range of industries and jurisdictions, including in the EU, the US, Canada, the UK, and Australia.
He regularly assists clients across all phases of merger cases, from pre-announcement through investigation, litigation, and compliance monitoring. His clients include merging parties, the US Department of Justice (DOJ), the Federal Trade Commission (FTC), and state attorneys general.
Dr. Tillmann holds a Ph.D. in economics from the University of Chicago, and his research has appeared in outlets such as the Journal of Competition Law & Economics and the American Journal of Political Science. He has taught economics to undergraduate and graduate students at The University of Chicago, the University of Rochester, and the University of Cologne.