Damages Regimes on Both Sides of the Atlantic

Abstract

The principles underlying the quantification of damage are universal. Differences between jurisdictions therefore do not originate in economics. In a cartel, the damage of direct purchasers arises from the portion of the price increase that is not passed on to indirect purchasers together with the lost margin of those sales that are no longer made due to the price increase. Actual harm suffered has economically been properly captured when both amounts are allowed to accrue compounded interest until compensation. This article discusses the variable permeation of these economic insights in EU and U.S. law. In fact, the reasons for the limited influence of economics appear to stem from coincidences and path dependencies. Notably the normative effects of the specific circumstances of the first U.S. damages case going back to a bid rigging case in the nineteenth century and the prevalence of U.S. literature when the EU devised its framework.