Società Italiana di Diritto ed Economia, SIDE - ISLE 2015 - 11TH ANNUAL CONFERENCE

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“Umbrella Pricing” in EU Competition Law and U.S. Antitrust Law: Another Transatlantic Divergence?
Alexandr Svetlicinii, Marco Botta

Last modified: 2015-12-15


Economists agree that in oligopolistic markets non-cartel members usually behave as “price takers”. By placing themselves under the umbrella of the cartel, non-cartelists thus indirectly enjoy the benefits of the cartel without being liable in relation to the establishment of the cartel. From a legal point of view, umbrella pricing raises the two issues: the standing of the customer of the non-cartelist as plaintiff in a private enforcement action and the causal link between the damage suffered by the customer of the non-cartel member and the anti-competitive conduct violating competition law. The paper aims at comparing the assessment of umbrella pricing under U.S. antitrust law and EU competition law in the aftermath of the Kone judgement ruled by the European Court of Justice (ECJ) in June 2014. By comparing the reasoning of the ECJ and of the U.S. federal courts on umbrella pricing, the paper discusses whether umbrella pricing could represent a new example of transatlantic divergence between EU competition and U.S. antitrust law.

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