Chapter 12 introduces a new economic framework to analyse power in the food value chain. Spurred on by the increased interest of policy makers and antitrust authorities over the last decade, academic scholarship has made progress in analysing the origins and consequences of different dimensions of power across the value chain: buyer power, bargaining power, economic dependence. This Chapter summarises the key concepts used to analyse and measure power in the food value chain and explores the different theories of harm that have been developed and occasionally tested in recent cases. Far from representing just a ‘mirror image’ of the exercise of seller power, the analysis of buyer power may at times require a different set of analytical tools and a more detailed, case-by-case understanding of its specific origins and effects. From then on, the authors move to suggesting a broader theoretical framework that would encompass all different dimensions of power in the value chain, under the rubric of vertical power. After defining the theoretical contours of the concept, the authors offer some metrics that enable an empirical verification of the existence and exercise of vertical power.

A competition law infringement is capable of damaging different subjects at the same time, virtually all the market players that are directly or even indirectly connected with the business of the competition law infringer. Economic activities are indeed structured on value chains, which are interconnected networks of contracts and hierarchies operating in a market. Here, the action or decision of a market player may impact many of the other market participants, affecting both their future strategies and their actual assets. For instance, the abuse of a dominant position causing the foreclosure of a competitor may equally impact on the business partners of that competitor and on its employees, as well as on the consumers of both markets. We will call ‘indirect economic losses’ all those damages that are a consequence of an infliction of damage upon a third party. When the harm is inflicted upon a third person which in turn causes harm to the claimant, we will instead refer to it as ‘secondary harms’.

The thread that connects the jurisdictions analyzed, despite the different theoretical backgrounds, is that courts divide the assessment of causation in a multi-stage process whereby the verification of the causal link has a strong empirical base. However, at any stage, causal uncertainty may render the assessment of causation extremely difficult if not impossible to perform. While the previous chapters have mainly dealt with the definition of the different concepts of causation from a comparative perspective, this chapter presents the main situations and elements of causal uncertainty, thus also introducing issues related to the proof of causation.

Causation, as any other element of an actionable tort, has to be proven in the proceedings. As pointed out in Chapter 1, the causal link is not a fact; it is indeed a connection between two known facts, also defined as 'an empirical relation between concrete conditions'. It follows that it is not subject to the same burden of proof as any other evidence submitted to the court. The causal link needs a demonstration through logic, statistics and common sense, which is supported by general scientific theories and, simultaneously, by specific justification of the singular causation. Proof of singular causation therefore needs (1) scientific validity of causal generalizations that control the condition and (2) complete instantiation of the empirical relation.

Competition law infringements may cause economic losses which are protected by EU and national laws. Liability for compensation of private damages in EU competition law is the result of the judicial interpretation of Articles 101 and 102 TFEU. The Court of Justice of the European Union (CJEU), with the two seminal cases Courage and Manfredi, introduced the principle of right to compensation for violation of competition law, stating that 'any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited'. Article 3 of the Directive 104/2014 (the ‘Damages Directive’) on competition damages actions has then imposed the transposition of this principle into national laws.

The European Union law grants the right to claim for damages to anyone harmed by an antitrust infringement, be they consumers, undertakings or public authorities. A competition law infringement may cause economic harm simultaneously to several market participants. Economic harms may indeed flow from an antitrust infringement in the form of price overcharges or other economic loss – for instance, lost profits or lost chances. Tort laws generally establish the liability of the infringer through the principle of corrective justice, based on which the wrongdoer has a duty to repair only the wrongful losses that his or her conduct has caused. Along these lines, the principle of corrective justice dispenses a general rule whereby a person harmed by a tort must be able to recover damages to restore the same situation, at least from an economic perspective, existing before the breach.

National courts have generally embraced a multifold account for causation in virtually all Member States. However, the different national tort law systems structure the multi-stage accounts differently. National judges enforce competition law rules largely relying on their domestic laws of obligations. For this reason, this chapter examines the bundle of tort law and competition law that applies to establish causation in competition damages actions before national courts of England, Germany, France and Italy. These four jurisdictions were selected because of the size of their economies, the amount of litigation and the fact that they show four different, almost paradigmatic, approaches to causation.

Causation in competition law damages actions shows peculiarities that distinguish it from any other tort in civil law and common law countries. Antitrust damages claims are based on pure economic losses made compensable by the violation of statutorily protected interests and EU laws (Articles 101 and 102 TFEU). The claims are therefore based on losses caused by actions distorting market dynamics which negatively affect the assets of undertakings or consumers operating in the same market. The wide range of subjects and heads of damages involved in this process make the identification of the causal link a particularly difficult task for parties and judges. In confirmation of this, the analysis of national case law suggests that claimants are often discouraged from bringing damages claims characterized by high causal uncertainty.

The previous chapter has presented the general proof rules of causation in competition damages actions. These standard rules burden the claimant with the proof of the essential elements of a tort, including causation. However, the claimant may find it very difficult if not impossible to prove causation, especially when information is limited or is not accessible. As observed in Chapter 5, the standard proof rules place the risk for the proof of the claim and the risk of error due to evidential uncertainty on the claimant. The rules allocating this risk are mainly the result of policy-based decisions aiming at distributing the risk fairly between the parties based on a moral statement. However, on the basis of equally justifiable policy and moral choices, it is possible to create exceptions to this rule in two cases: (1) when the information is readily available to the other party and (2) when it is fair, according to the type of responsibility, to allocate the risk differently.

The Directive on Damages Actions 104/2014 (the Damages Directive) has laid down a common European framework for the regulation of competition damages actions. It establishes fundamental principles, such as the right to compensation and the joint liability of antitrust infringers for such compensation. However, it explicitly avoids defining causation, thus leaving it to the domestic laws of member states. The only limit set by the EU law is the observance of the principles of equivalence and effectiveness, in line with what was already disposed by the CJEU in Manfredi. However, there are some principles addressing causation that can be found in European law and case law.