OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 29 July 2019 (1)

Case C‑435/18

Otis Gesellschaft m.b.H. and Others

v

Land Oberösterreich and Others

(Request for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Request for a preliminary ruling – Competition – Antitrust law – Private enforcement – Action for damages by a government lender – Loans on preferential terms to fund housing developments – Elevator cartel – Inflated construction costs caused by the cartel – Claim for compensation for loss of interest)

Table of contents

I.      Introduction

1.        Does EU law require that a government lender who has sustained losses because it granted promotional loans on preferential terms to a greater extent than it would have done in the absence of an anticompetitive agreement can demand damages from the undertakings which were party to that agreement?

2.        This question gives the Court the opportunity to further specify the requirements of EU law concerning the private enforcement of European competition law. It has been referred against the background of the elevator cartel, with which the Court of Justice has already had to deal on a number of occasions. (2)

3.        Land Oberösterreich (Province of Upper Austria) was affected by this cartel in that it granted soft loans, known as ‘promotional loans’, to customers of the cartel members for social housing development projects. As a result of concerted overpricing of the elevators installed in the funded housing, the loan amounts were substantially higher than they would have been had the prices been determined on the basis of free competition. The province is seeking damages in the main proceedings for its resultant losses.

4.        The courts seised in the main proceedings are divided as to whether Austrian law recognises compensation for this type of indirect harm. The referring court, the Oberster Gerichtshof (Supreme Court, Austria) holds that it does not, as persons acting neither as suppliers nor as users on the relevant market are not covered by the protective purpose of the prohibition on anticompetitive agreements, decisions and concerted practices.

5.        The Court of Justice must decide if this restrictive definition of the persons entitled to compensation is compatible with the principles of EU competition law. First, however, it is necessary to clarify whether the question of the claim to compensation of the Province of Upper Austria has to be answered with recourse to Austrian law, in conjunction with the principles of equivalence and effectiveness, or directly on the basis of EU law.

II.    Legal context

6.        The referring court has requested an interpretation of Article 85 of the EC Treaty, Article 81 EC and Article 101 TFEU. As these provisions are largely identical in content, reference is only made below to Article 101 TFEU, which is the provision currently in force. (3)

7.        The facts at issue in these proceedings occurred prior to the entry into force of the Directive on Antitrust Damages Actions (Directive 2014/104/EU (4)) and the proceedings at first instance also were initiated by the Province of Upper Austria before the entry into force of Directive 2014/104. (5) Thus, Directive 2014/104 does not apply in the present proceedings ratione temporis and there is no need to clarify if any relevant provisions of Austrian law are of a substantive or procedural nature. Indeed, according to Article 22 of Directive 2014/104, substantive measures implementing the Directive are subject to a general prohibition on retroactive effect, whereas all other national implementing provisions – namely procedural provisions – apply to facts that occurred prior to the entry into force of the Directive, but only in the context of proceedings initiated after the entry into force of the Directive. (6)

8.        As correctly observed by the Italian government, Directive 2014/104 can thus only be relied upon in the present proceedings inasmuch as it reflects the general rules on antitrust damages established in case-law. (7)

III. Facts and main proceedings

A.      The elevator cartel

9.        The ‘elevator cartel’, which involved the conclusion of anticompetitive agreements between major European manufacturers of elevators and escalators, more specifically, Kone, Otis, Schindler and ThyssenKrupp, operated in several Member States of the European Union over a period of many years. The European Commission uncovered that cartel in 2003 and, in 2007, imposed fines for the elevator cartel’s practices on the Belgian, German, Netherlands and Luxembourg markets. (8)

10.      In Austria, the Bundeswettbewerbsbehörde (Federal Competition Authority) and the Kartellgericht (Antitrust Court) took action against the elevator cartel. The fines imposed by the Antitrust Court in 2007 (9) were upheld by the Oberster Gerichtshof (Supreme Court), sitting as higher antitrust court, in 2008. (10) ThyssenKrupp was the leniency applicant.

11.      According to the findings made in the Austrian national antitrust proceedings, there had existed between the parties to the cartel, from the 1980s to early 2004, an agreement, repeatedly confirmed, to divide up the market for elevators and escalators, which those parties largely, albeit not uninterruptedly, implemented. That concerted practice continued at the very least until the end of 2005. The cartel was intended to secure for the favoured undertaking in each case a higher price than the one that would have been achievable under competitive conditions. The cartel, which controlled at least one third of the market volume, distorted competition and the evolution of prices to be expected under conditions of competition. (11)

B.      The action for damages brought by the Province of Upper Austria

12.      During the period affected by the elevator cartel, the Province of Upper Austria granted various types of funding for construction projects under the provisions of housing funding law in order to promote social housing developments. This funding took the form, first, of direct grants (whereby the beneficiary receives part of the construction costs as a grant that does not have to be repaid); second, interest subsidies (whereby the province reimburses part of the beneficiary’s loan instalments); and, third, promotional loans (that is loans on preferential terms giving the beneficiary an opportunity to borrow at lower-than-market interest rates). (12)

13.      This funding accounted in each case for a certain percentage of the overall construction costs. As these construction costs were higher, due to overpricing of the elevators, than they would have been without the elevator cartel, the Province of Upper Austria (13) is now seeking damages from Otis, Schindler, Kone and ThyssenKrupp, the elevator manufacturers involved in the cartel.

14.      This request for a preliminary ruling only concerns claims of the Province of Upper Austria based on the fact that the promotional loans disbursed were inflated as a result of the cartel.

15.      The Province of Upper Austria is claiming damages equal to its loss of interest, which is calculated as follows: as a result of overpricing by the cartel of the elevators installed in the funded buildings, the soft promotional loans were higher than they would have been without the cartel. Had it invested the difference between the amount which it disbursed to the beneficiaries and the lower amount that it would have disbursed to those beneficiaries without the additional costs generated by the cartel at the average yield on federal bonds, the Province of Upper Austria would have generated far more interest than that paid back to it by the beneficiaries at the discounted interest rates. The losses for which the Province of Upper Austria is claiming compensation in the main proceedings are therefore equal to the difference between the interest income paid back by the beneficiaries and the interest income that would have been achieved by investing the additional funding disbursed in promotional loans as a result of the cartel at the average yield on federal bonds.

16.      The court of first instance dismissed the claim by the Province of Upper Austria; the reason given was that, as a funding body, it is not an economic operator on the elevator and escalator market and was therefore merely claiming indirect harm which, as such, is not eligible for compensation. (14)

17.      The appeal court annulled the first instance judgment. (15) It held that, after all, the prohibition on price-fixing also protects the financial interests of anyone who incurs additional financial expenditure as a result of price-fixing and moreover that, in granting funding, the Province of Upper Austria facilitated construction projects, thereby generating demand for the goods supplied by the cartel members, and therefore it too was included in the protection afforded by the antitrust rules.

18.      The elevator manufacturers lodged an appeal against that decision with the referring court, the Oberster Gerichtshof (Supreme Court). The referring court concurs with the court of first instance on the application of national law. It holds that compensation for actual losses depends upon infringement of a law protecting the members of a particular group of people against infringement of a legally protected right, but that the Province of Upper Austria did not sustain a loss as a supplier or customer on the market affected by the price-fixing and therefore, under Austrian law, there was not a sufficient link between its loss and the purpose of the prohibition on anticompetitive agreements, which is to maintain competition on the market affected by the cartel.

19.      However, in light of the case-law of the Court of Justice on antitrust damages actions, especially the judgment in Kone (16) and my Opinion in that case, (17) the Oberster Gerichtshof (Supreme Court) has doubts as to the compatibility of that solution with EU law.

IV.    Request for a preliminary ruling and proceedings before the Court of Justice

20.      Therefore, by order of 17 May 2018, (18) the Oberster Gerichtshof (Supreme Court) referred the following question to the Court of Justice for a preliminary ruling:

‘Are Article 85 of the EC Treaty, Article 81 EC or Article 101 TFEU to be interpreted as meaning that, in order to maintain the full effectiveness of those provisions and the practical effectiveness of the prohibition resulting from those provisions, it is necessary that compensation for losses may also be claimed from members of a cartel by persons who are not active as suppliers or customers on the relevant product and geographic market affected by a cartel, but who grant loans to buyers of the products offered on the market affected by the cartel on preferential terms as funding bodies within the scope of statutory provisions, and whose loss lies in the fact that the loan amount granted as a percentage of the product costs was higher than what it would have been without the anticompetitive agreement, which means that they were unable to invest those amounts profitably?’

21.      During the written part of the preliminary ruling proceedings, observations were submitted, on the one hand, by the Province of Upper Austria and, on the other hand, by Otis, Schindler, Kone and ThyssenKrupp as well as by the Republic of Italy and the European Commission. With the exception of Italy, those parties and the Republic of Austria were also represented at the hearing on 16 May 2019.

V.      Assessment

A.      Admissibility of the request for a preliminary ruling

1.      Jurisdiction of the Court of Justice to answer the question referred in respect of the period prior to Austria’s accession to the EU

22.      The Oberster Gerichtshof (Supreme Court) is not concerned by the fact that the contested conduct occurred in part prior to Austria’s accession to the European Union on 1 January 1995. (19) However, by its written observations, the Province of Upper Austria comments extensively on the question of the jurisdiction of the Court of Justice to interpret the national rules that regulated the prohibition on anticompetitive agreements, decisions and concerted practices prior to Austria’s accession to the European Union.

23.      According to the Province of Upper Austria, the Court of Justice does have jurisdiction to interpret those national rules, as they were modelled on the precursor provisions to Article 101 TFEU and were intended to approximate national competition law with the competition law of the European Communities. It states that this is particularly true for the period after the entry into force of the EEA Agreement on 1 January 1994, to which Austria was a Contracting Party and which also broadly adopted EC law prohibiting anticompetitive agreements, decisions and concerted practices.

24.      The Province of Upper Austria is relying here on the case-law establishing that the Court of Justice also has jurisdiction to interpret EU law in situations where the facts of the main proceedings fall outside the direct scope of EU law, but where EU law has been rendered applicable by national law to purely internal situations or where the national legislature intended to harmonise the applicable national law with EU law. (20)

25.      However, contrary to the submission of the Province of Upper Austria, the Court of Justice did not hold by those judgments that it has jurisdiction to interpret rules of national law which refer to EU rules or were modelled on them. That is because the national courts alone have jurisdiction to interpret rules of national law. (21) Rather, the Court of Justice simply held in the judgments cited by the Province of Upper Austria that it has jurisdiction to interpret EU rules in situations in which, although those rules were not directly applicable, national law refers to them or was aligned with them.

26.      However, that jurisdiction only applies where, although not regulated directly by EU law, the contested facts occurred at a time when the Member State in question was already a Member State of the European Union. After all, the Court of Justice has found that it does not have jurisdiction to answer requests for a preliminary ruling in which the facts in the main proceedings occurred prior to the accession of a country to the European Union. That is because the Court of Justice has jurisdiction to interpret EU rules solely as regards the application of those rules in a new Member State with effect from the date of accession of that Member State to the European Union. (22) The same applies where the national rules applicable to the contested facts prior to the accession of the Member State concerned to the European Union had already been aligned with the corresponding EU rules. That is because, even in that case, the application and interpretation of the relevant national rules prior to the accession of the Member State concerned to the EU was incumbent solely upon the national authorities and courts. (23)

27.      Substantive provisions may not, as a matter of principle, be applied with retroactive effect; therefore, the prohibition on anticompetitive agreements, decisions and concerted practices under EU law may be applied to a cartel that operated in the form of continuous infringement both before and after the date of accession of a country to the European Union only inasmuch as any anticompetitive effects of that cartel need to be penalised with effect from the accession date in question. By contrast, the prohibition on anticompetitive agreements, decisions and concerted practices under EU law does not apply to a cartel that produced or might have produced effects in the sovereign territory of a Member State solely during periods prior to the accession of that Member State to the European Union. (24)

28.      As explained above, the practices of the Austrian elevator cartel concerned by the main proceedings took place both before and after Austria’s accession to the European Union. (25) However, in terms of the jurisdiction of the Court of Justice to answer this request for a preliminary ruling, the question of whether the claims for damages brought by the Province of Upper Austria in the main proceedings are based on the effects produced by the elevator cartel before or after Austria’s accession to the EU is irrelevant. (26)

29.      Since, after all, at least some of the contested facts occurred anyway after Austria’s accession to the EU and thus under the scope of EU law, it is not disputed that the Court of Justice has jurisdiction within the framework of these preliminary ruling proceedings to answer the question of the referring court seeking interpretation of Article 101 TFEU and its precursor provisions.

30.      Should the Court of Justice come to the conclusion from that interpretation that Article 101 TFEU and its precursor provisions require that the Province of Upper Austria can bring claims for damages against the members of the elevator cartel, it will be for the referring court to decide if the rules of national law in force prior to Austria’s accession to the EU should be interpreted in keeping with the case-law of the Court of Justice as meaning that they also substantiate a claim for damages for losses incurred on the part of the Province of Upper Austria during the period prior to Austria’s accession to the EU.

2.      Relevance of the question referred

31.      By their pleadings, the elevator manufacturers and the Commission questioned whether loss of interest such as that claimed by the Province of Upper Austria is eligible for compensation. In response to a written query from the Court of Justice as to whether the Province could also claim losses incurred by reason of the fact that, as a result of the cartel, it had to borrow more money on the financial market in order to fulfil its statutory obligations, various parties argued at the hearing that such grounds for the losses had not been put forward in time in the main proceedings and could thus no longer be submitted at the current stage of the proceedings.

32.      Accordingly, they argued that in fact there were no losses which required a decision as to their eligibility for compensation at stake in the main proceedings, so that the question referred by the Oberster Gerichtshof (Supreme Court) was irrelevant to the dispute in these proceedings and hence hypothetical and that the request for a preliminary ruling should therefore be dismissed as inadmissible.

33.      That argument cannot succeed because it fails to recognise the demarcation line between the admissibility and the substantive appraisal of this request for a preliminary ruling.

34.      Thus, the Oberster Gerichtshof (Supreme Court), to whose question a presumption of relevance attaches under case-law, expresses in its request for a preliminary ruling neither doubt as to the fact that the Province of Upper Austria incurred losses nor as to the fact that those losses were caused by the elevator cartel. (27) Rather, the Oberster Gerichtshof (Supreme Court) questions if there is a sufficient link between those losses and the purpose of the prohibition on anticompetitive agreements, decisions and concerted practices and if they are therefore eligible for compensation on that ground.

35.      Like the question raised by the elevator manufacturers and the Commission as to whether the losses incurred by the Province of Upper Austria as a result of the elevator cartel are actual losses eligible for compensation, this question is important for the purpose of examining if the conditions for the liability of the cartel members are fulfilled. However, that question must be addressed as part of the substantive examination of the question referred and not during examination of the relevance of that question to the decision to be given in the main proceedings and hence of the admissibility of the question referred.

B.      Substantive assessment of the question referred

36.      By its question, the referring court asks if Article 101 TFEU and its precursor provisions require that a government lender who is active on a market affected by a cartel neither as a supplier nor as a customer, can claim compensation for losses incurred by reason of the fact that it was unable to invest profitably elsewhere an amount disbursed in soft loans inflated because of the cartel.

37.      The parties to these proceedings disagree as to the criterion on the basis of which this question should be answered. Whereas the Province of Upper Austria takes the view that the question referred should be answered directly on the basis of EU law, the elevator manufacturers and the Commission take the view that the question referred should be answered in accordance with national law, which would then simply need to be measured against the principles of equivalence and effectiveness.

38.      As Advocate General Wahl states in his Opinion in Skanska, the difference between an assessment based on the principles of equivalence and effectiveness, on the one hand, and an assessment based on a direct assessment in light of Article 101 TFEU, on the other, is an important one in terms of determining the demarcation line between questions governed by EU law and questions governed by the national legal systems of the Member States. (28)

39.      Therefore, it is necessary to clarify first of all the criterion on the basis of which the question referred should be answered, namely by direct interpretation of EU law or, rather, in light of the requirements for national law from the perspective of equivalence and effectiveness (see section 1. below). In a second step, the question referred then needs to be discussed based on the criterion adopted (see section 2. below).

1.      The right of government lenders to antitrust damages: a matter of European Union law

40.      Private enforcement of the prohibition on anticompetitive agreements, decisions and concerted practices under EU law through actions for damages before the national courts is the second pillar of European antitrust law alongside public enforcement by the antitrust authorities. On that basis, the Court of Justice has previously ruled that every individual has a direct right pursuant to Article 101 TFEU to demand damages for losses incurred as a result of infringement of the prohibition on anticompetitive agreements, decisions and concerted practices under EU law. This means that any individual can demand compensation for their losses, provided that there is a causal relationship between those losses and an infringement of competition rules, without that right being in any way dependent on the national law of the Member States. (29)

41.      However, in the absence of EU rules, it is for the domestic legal system of each Member State to lay down detailed rules governing the exercise of that right to compensation in the national courts, provided that the principles of equivalence and effectiveness are observed. (30) Directive 2014/104 confirms this jurisdictional division. (31)

42.      Nonetheless, the question arises anew in each case as to which issues of an antitrust damages action fall specifically under EU law and which issues of such an action are governed by the national law of the Member States. (32)

43.      The Court of Justice has already established in its case-law to date the demarcation line between EU law and national law in the field of antitrust damages actions (a). In the present case, it is necessary to ascribe jurisdiction to regulate the various issues surrounding the concept of ‘causal relationship’ in light of that demarcation line (b).

(a)    The demarcation line between EU law and national law in the field of antitrust damages actions

44.      As I explained in my Opinion in Kone, it follows from the case-law of the Court of Justice that jurisdiction in the field of antitrust damages actions is divided between the European Union and the Member States along a demarcation line between substantive claim and procedural enforcement: the question of the existence of a claim to compensation (i.e. the question of whether compensation is to be granted) must be answered in light of EU law. Details of application of such claims and rules for their actual enforcement (i.e. the question of how compensation is to be granted), in particular jurisdiction, procedure, time limits and the furnishing of proof, must be regulated under national law. (33)

45.      As Advocate General Wahl noted in his Opinion in Skanska, only the rules relating to the application of the right to claim compensation fall under national law, whereas the preconditions that form the constitutive conditions and thus the actual ground for that right are determined directly by Article 101 TFEU. (34)

46.      The Court of Justice upheld this in its judgment in Skanska by finding that the determination of the entity which is required to provide compensation for harm caused as a result of infringement of Article 101 TFEU is directly governed by EU law. (35) This is in keeping with previous judgments by which the Court of Justice found that not only the group of persons able to demand compensation from the cartel members (‘any individual’), (36) but also the type of losses which the members of the cartel may be required to compensate (both actual losses (damnum emergens) and loss of profit (lucrum cessans) plus interest) are determined in accordance with EU law. (37)

(b)    ‘Causal relationship’ – between determination by EU law of the right to ask for compensation and enforcement of that right by the Member States

47.      From a legal standpoint, the question of the eligibility for compensation of the losses of the Province of Upper Austria is, like the question of the eligibility for compensation of losses caused by umbrella pricing in Kone, a problem of causal link: (38) the question that arises is whether there is a sufficiently close link between the elevator cartel and the losses incurred by the Province in granting promotional loans that were too high due to the inflated prices of the elevators or whether those are excessively remote losses for which damages cannot reasonably be awarded against the members of the cartel.

48.      The elevator manufacturers and the Commission take the view that the question of the existence of a ‘causal relationship’ between an infringement and harm must be answered on the basis of national law, in conjunction with the principles of equivalence and effectiveness, rather than directly on the basis of EU law.

49.      Those parties base that view on the finding by the Court of Justice in Manfredi, that ‘it is for the domestic legal system of each Member State to prescribe the detailed rules governing the exercise of [the] right [to compensation], including those on the application of the concept of “causal relationship”’. (39) That finding has been included in recital 11 of Directive 2014/104, which does not otherwise address the concept of the causal relationship between an infringement and damage. On the contrary, recital 11 suggests that the Member States may retain any other existing conditions to compensation, such as imputability, adequacy or culpability, in their national law, in so far as they comply with the case-law of the Court of Justice, the principles of effectiveness and equivalence and the provisions of the Directive.

50.      However, it transpires on closer consideration that the construct of ‘causal relationship’ between a harmful event and damage under compensation law is a multi-layered legal concept: Thus, the purpose of examining the causal relationship is not only to establish if a particular event was in fact the cause of particular damage. On the contrary, examination of the causal link may also involve normative elements regarding the question of whether there is a sufficient link between the harm claimed and the purpose of the infringed rule. (40)

51.      This normative aspect of the causal link is illustrated in these proceedings by the parties’ discussion of whether, in the case of the Province of Upper Austria, there is a ‘link of unlawfulness’ between the infringement and the harm sustained, as required under Austrian law in order to substantiate a claim to compensation. According to Austrian law, such a link only exists if the legal norm infringed by the injuring party is specifically intended to protect the injured party. According to the referring court, such a link does not exist under Austrian law in this particular case because, although the personal scope of the prohibition on anticompetitive agreements, decisions and concerted practices extends to persons active on a market affected by a cartel as suppliers or customers, it does not apply to government lenders who provide funding to make it easier for particular groups of customers to purchase the product affected by the cartel. Consequently, under Austrian law, such lenders’ claims to compensation would be dismissed, as there would not be a sufficient link between their losses and the purpose of the prohibition on anticompetitive agreements, which is to maintain competition on the market affected by the cartel.

52.      This discussion alone illustrates that the question at issue here is one aspect of the examination of the causal link that concerns the substantive preconditions of the right to antitrust damages rather than the rules governing the procedural enforcement of that right. Indeed, this discussion concerns the question of whether Article 101 TFEU also confers a right to compensation for losses incurred as a result of a cartel on persons who were not active on a market affected by the cartel either as suppliers or as customers. That question concerns the scope of protection afforded by Article 101 TFEU and is thus a question of the interpretation of a provision of EU law which must be answered on the basis of EU law alone.

53.      It would not, in fact, be appropriate to leave, as suggested by the Commission, the answer to this question of the interpretation of a provision of EU law to the national legal systems and to measure their answers in turn against the principle of effectiveness under EU law.

54.      After all, according to settled case-law of the Court of Justice, it follows from the need for uniform application of EU law and from the principle of equality before the law that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the object pursued by the legislation in question. (41) That means in this context that dogmatic constructs of national law conceived to limit boundless liability, such as the theories on the protective purpose of the norm or the adequacy of the causal link between an infringement and harm, cannot be the crucial factor in terms of determining the scope of Article 101 TFEU.

55.      On the contrary, a uniform interpretation of the prohibition on price-fixing as a rule by which to establish harm is needed across the EU if Article 101 TFEU is to achieve its full effectiveness. That is because that provision serves the fundamental objective of European competition law, which is to create framework conditions that are as uniform as possible (‘level playing field’) on the internal market for all undertakings active in it. That objective would be undermined if the legal criteria by which national courts assess the civil liability which the members of a cartel within the meaning of Article 101 TFEU owe to certain persons for certain kinds of loss were to differ fundamentally from one Member State to another. (42)

56.      Based on the demarcation line between substantive claim and procedural enforcement, the ‘detailed rules on the application of the concept of “causal relationship”’ which, according to the Court of Justice in Manfredi and recital 11 of Directive 2014/104, it is for the domestic legal system of each Member State to lay down, can therefore only consist in the modalities governing how a causal link between a harmful event and damage is actually established in each particular case. This is in keeping with the fact that, in its judgment in Manfredi, the Court of Justice included the ‘detailed rules on the application of the concept of “causal relationship”’ under the ‘detailed rules governing the exercise of [the] right [to compensation]’: The issue is the enforcement of compensation claims, not the existence of such claims.

57.      The modalities for actually establishing a causal link between a harmful event and harm in each particular case concern, for example, the question of how many expert opinions of what type or what level of scientific expertise are needed in order to prove that the pain of a person who fell victim to an accident or an illness due to certain working conditions (e.g. the fact of being exposed to harmful substances) can actually be ascribed to the accident or working conditions in question, rather than to a pre-existing illness. Likewise, the modalities governing the enforcement of compensation claims concern the type of proof demanded from a client wishing, for example, to prove that damage to a building was in fact caused by a construction defect rather than by weather conditions beyond the construction firm’s control.

58.      In terms of the main proceedings, the modalities for actually establishing a causal link between the elevator cartel and the financial losses claimed by the Province of Upper Austria may concern for example the type of evidence demanded in order to demonstrate that the funding was actually granted in the amount claimed, that the additional costs claimed are actually attributable to the cost of the elevators installed in the funded buildings or that the average yield on federal bonds in the relevant period was actually equal to the yield based on which the Province calculated its losses.

59.      These aspects concern indeed the modalities of the procedural enforcement of the right to antitrust damages established under EU law, which then have to be regulated under national law, measured against the principles of equivalence and effectiveness. On the other hand, as explained above, the question of whether there is a sufficient link between harm such as that incurred by the Province of Upper Austria and the protective purpose of Article 101 TFEU and its precursor provisions concerns the substantive preconditions to the right to antitrust damages under EU law and must therefore be answered directly on the basis of EU law.

60.      After all, the ultimate question here is who is entitled under Article 101 TFEU to demand compensation for what harm and, thus, what the preconditions are to a claim to antitrust damages under EU law. As with the contested question in Skanska, therefore, as to who is required under Article 101 TFEU to provide compensation, these are matters governed by EU law. (43)

61.      Contrary to Kone’s submission in these proceedings, the judgment of the Court of Justice in the earlier case Kone does not suggest otherwise. Thus, it is certainly true that the Court of Justice reiterated at the start of that judgment the general principle that it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to antitrust damages, including those on the application of the concept of ‘causal relationship’, provided that the principles of equivalence and effectiveness are observed. (44) Nevertheless, as Advocate General Wahl states in his Opinion in Skanska, the ensuing assessment by the Court of Justice of the question as to whether the civil-law liability of the cartel members for compensation extended to umbrella pricing was done solely by reference to the full effectiveness of Article 101 TFEU. (45)

62.      In keeping with the above statements, the subsequent assessment of the question referred in these proceedings must therefore be done directly on the basis of Article 101 TFEU and not on the basis of the principles of equivalence and effectiveness.

2.      The right of government lenders to antitrust damages

63.      The referring court wishes to know if a government lender who is active on a market affected by a cartel neither as a supplier nor as a customer can demand compensation under Article 101 TFEU and its precursor provisions for losses incurred by reason of the fact that it was unable to invest profitably elsewhere an amount disbursed in soft loans inflated because of the cartel. (46)

64.      The Province of Upper Austria argues on this point that it already follows from the judgment of the Court of Justice in Kone (47) that it is incompatible with Article 101 TFEU to exclude the liability of cartel members for a particular type of harm for legal reasons categorically and independently of the circumstances of the particular case.

65.      The elevator manufacturers and the Commission contend that the purpose of Article 101 TFEU is to protect competition and, therefore, only persons engaged in competition can demand compensation under that provision for losses incurred from engaging in competition. They argue that it was such losses alone that were the subject matter of the judgment in Kone and that, by way of contrast, there is not a sufficient link between the losses claimed by the Province of Upper Austria and the protective purpose of Article 101 TFEU, so that these losses are not eligible for compensation.

66.      In its judgment in Kone, the Court of Justice examined not only whether the protective purpose of Article 101 TFEU prevented the liability of cartel members for certain harm from being categorically excluded, but also whether there was a sufficiently direct link between harm caused by umbrella pricing and a cartel that managed to keep the price of particular products artificially high. (48)

67.      It follows from this that the conditions governing the liability of cartel members for the harm caused by the cartel are ultimately similar to the conditions governing the non-contractual liability of EU bodies and the liability of Member States towards individuals for infringements of EU law. (49) Those conditions are, essentially, that the infringed rule must grant rights to the injured party, that actual harm must have been caused and that there must be a sufficiently direct causal link between the harmful conduct and the harm claimed. (50)

68.      It follows from the judgment in Kone that the Court of Justice is required in the preliminary ruling proceedings to examine, in an abstract and general way, whether those conditions are satisfied with regard to the harm disputed in the main proceedings. If they are, it is then for the referring national court to examine if those conditions are actually satisfied in the specific case in question. (51) This division of tasks is in keeping with the fact that, although it is ultimately for the national court to determine whether the conditions for compensation are satisfied in a particular case, it is for the Court of Justice to provide guidance, based on the file in the main proceedings and the written and oral observations submitted to it, in order to enable that court to give judgment on the dispute before it. (52)

69.      In terms of these preliminary ruling proceedings, that means that, first, the Court of Justice must examine if the protective purpose of Article 101 TFEU precludes compensation for the funding losses claimed by the Province in the main proceedings, as contended by the Commission and the elevator manufacturers (a). Then it must discuss the contention of those parties that the harm for which the Province is seeking compensation is not actual harm that qualifies for compensation (b). Finally, it must consider if there is a sufficiently direct link between the harm sustained by the Province and the infringement by the cartel members of Article 101 TFEU and its precursor rules (c).

(a)    The protective purpose of Article 101 TFEU

70.      The elevator manufacturers and the Commission take the view that the Province of Upper Austria, in its capacity as a government lender, is not covered by the protective purpose of Article 101 TFEU as it has not acted in that capacity as a market participant.

71.      They contend that it would indeed be too restrictive to assume that only operators on the product market directly affected by a cartel (in this case the elevator market) could seek compensation for harm caused by the elevator cartel and that, on the contrary, both direct and indirect suppliers and customers on markets upstream and downstream of that market, such as persons who supplied parts for the cartel product or acquired that product as part of another product, are also covered by the protective purpose of Article 101 TFEU.

72.      However, they contend that, in order to be eligible for compensation under Article 101 TFEU, the harm must have been sustained as a result of having participated in market activities, i.e. as a result of having supplied or demanded products or services; that this does not apply in the case of the harm sustained by the Province of Upper Austria, as it had acted not for profit but as a government lender within the framework of its political competence to fund new social housing; and that EU law simply did not intend government lenders to have a right to bring antitrust damages actions under Article 101 TFEU.

73.      They argue that, although government bodies are not excluded from the protective purpose of Article 101 TFEU per se, as illustrated by Directive 2014/104, which also mentions public authorities as being entitled to compensation, (53) and the judgment in Otis, which concerned compensation claims by the European Union itself, (54) in the case in which that judgment was given the Commission was acting as a customer on the market rather than in the exercise of its sovereign powers, meaning that the disputed financial losses were incurred in that case by reason of having participated in market activities.

74.      That argument disputes the right of the Province of Upper Austria to compensation for the losses claimed in the main proceedings primarily by reason of the fact that the Province sustained those losses during an activity performed for the purpose of exercising its political competences, not for profit. Thus, it ultimately relies on the assumption, based on the fact that the objective of Article 101 TFEU is to maintain competition, that only persons engaged in competition as suppliers or customers are protected by Article 101 TFEU and thus that only harm sustained as a result of having engaged in competition is eligible for compensation under that provision.

75.      However, that conclusion must be dismissed, without it being necessary to consider whether the activity of the Province of Upper Austria at issue in the main proceedings qualifies as participation in market activities. Indeed, as the Province of Upper Austria rightly argues, it already follows from the case-law of the Court of Justice to date that categorical restriction of the right to antitrust damages is incompatible with the protective purpose of Article 101 TFEU (1). Neither the particular characteristics of the Province as a government lender (2) nor the provisions of Directive 2014/104 (3) are able to call that finding into question.

(1)    Incompatibility between categorical restriction of the right to compensation and Article 101 TFEU

76.      It is true that the main objective of Article 101 TFEU is to ensure that competition remains undistorted within the common market. (55) However, that does not mean, conversely, that the right to demand compensation for losses caused by a cartel is only vested in persons who sustained those losses as a result of operating on the market affected by that cartel or on an upstream, downstream or neighbouring market or as a result of participating in market activities in general.

77.      According to the case-law of the Court of Justice, on the one hand, the facility to demand compensation for losses caused by a cartel is designed to guarantee the full effectiveness and practical effect of Article 101 TFEU and the prohibition on anticompetitive agreements, decisions and concerted practices laid down therein. (56) That is because the right to demand compensation for such losses is an excellent way of discouraging undertakings from engaging in agreements or practices which are liable to restrict or distort competition. (57) On the other hand, that right constitutes effective protection against the adverse effects that any infringement of Article 101(1) TFEU is liable to cause to individuals, as it allows persons who have suffered harm due to that infringement to seek full compensation. (58)

78.      Both the guarantee of the full effectiveness and practical effect of Article 101 TFEU and protection against the adverse effects of an infringement of competition law would be severely compromised if the facility to demand compensation for harm caused by a cartel were restricted to market participants, as that would impose a blanket exclusion from the outset on a large number of potential claimants and deprive them of their right to demand compensation from cartel members, irrespective of whether there was a sufficiently direct causal link between the cartel and the harm sustained.

79.      Indeed, although it is true that the prevention, restriction or distortion of competition by a cartel prohibited under Article 101 TFEU tends to take place on the market, that does not mean that harm caused by a cartel can only occur on the market affected by that cartel or on an upstream, downstream or neighbouring market, (59) or that harm can only be caused by a cartel in connection with the supply of or demand for products or services on the market. On the contrary, this case highlights the variety of the types of harm that can be caused by anticompetitive conduct, which is not confined to harm suffered by direct or indirect suppliers or customers on the market affected by a cartel or a neighbouring market or to harm suffered in the exercise of an activity for profit.

80.      The Court of Justice precisely took account of that variety when it described the right to antitrust damages in very general terms, stating that ‘any individual’ may demand compensation for the harm caused to them by a cartel, provided there is a causal link between that harm and the cartel, (60) and when it ruled that it is incompatible with Article 101 TFEU to categorically exclude that right to antitrust damages for particular losses on legal grounds, irrespective of the circumstances of the particular case. (61) Yet restricting the right to compensation to market participants would precisely impose a categorical blanket exclusion on the liability of the undertakings in a cartel for certain types of harm on legal grounds, irrespective of the specific circumstances of the particular case.

81.      It therefore ultimately follows from the case-law of the Court of Justice that the objective of Article 101 TFEU, which is to maintain undistorted competition on the common market, does precisely not include any restriction on the right to antitrust damages. On the contrary, Article 101 TFEU grants everyone the right to demand compensation for any harm caused by a cartel.

82.      However, this does not equate, as feared by the elevator manufacturers, to an unlimited right to compensation that would result in unlimited liability on the part of the cartel members, irrespective of the circumstances of the particular case, for all potential losses, however remote, for which their anticompetitive conduct may have been the cause in the sense of a ‘conditio sine qua non’ (also known as an equivalent causal link or a but-for causal link). (62)

83.      On the contrary, the fact that the cartel members are only liable for harm for which there is a sufficiently direct link to their anticompetitive conduct and which they could therefore have foreseen takes account of the right of the cartel members to legal certainty and of the need to curb unlimited liability. (63)

84.      Thus, the crucial question here, in terms of whether the losses sustained by the Province of Upper Austria qualify for compensation, is not whether there is a sufficient link between those losses and the protective purpose of Article 101 TFEU, as argued by the Commission and the elevator manufacturers. That is because, as explained above, the protective purpose of Article 101 TFEU is to ensure that all harm is eligible for compensation where there is a causal link between the harm and the infringement of that provision. Therefore, the crucial question in this case is rather whether there is a sufficiently direct causal link between the elevator cartel and the losses for which the Province is seeking compensation.

(2)    Particular characteristics of the Province of Upper Austria as a government lender

85.      It follows from the foregoing that the argument expounded by the Commission and the elevator manufacturers, that specifically the losses sustained by the Province of Upper Austria are not covered by the protective purpose of Article 101 TFEU because they were incurred during the performance of the political tasks of that authority, has no prospect of success.

86.      Denying the Province of Upper Austria compensation for its losses because, in providing funding, it acted within the framework of its political tasks, rather than for the procurement of the means necessary to perform those tasks, as would be the case, for example, when purchasing elevators for its buildings, would result in government bodies always being excluded from the protective purpose of Article 101 TFEU unless they are acting within the framework of their procurement activity and thus as a customer on the market.

87.      Ultimately, that would impose a categorical blanket exclusion on compensation for certain types of harm on legal grounds, irrespective of the specific circumstances of the particular case. However, according to the judgment in Kone, any such blanket exclusion is precisely incompatible with Article 101 TFEU. (64) That is because the effective enforcement of Article 101 TFEU requires that any individual can demand compensation for harm sustained as the result of an infringement of competition law.

88.      Also, the fact that government lenders are entitled to claim compensation should make an important contribution in terms of enforcing the prohibition on anticompetitive agreements, decisions and concerted practices. Unlike public enforcement of antitrust law, civil enforcement depends after all on the initiative of the injured parties. That initiative is lacking if the injured party has no economic incentive to enforce a claim for damages, for example where only minor losses are incurred by an individual. This is often the case where private end consumers purchase a slightly overpriced product and are only affected by price-fixing in the form of minor scattered damage. An action for damages is generally not worthwhile for such private end consumers.

89.      On the other hand, government lenders which disburse large amounts in funds have an interest in pursuing their claim through the courts and are therefore reliable stakeholders in terms of the effective enforcement of European competition law.

90.      Moreover, neither the Commission nor the elevator manufacturers have put forward any grounds that would justify a blanket exclusion from eligibility for compensation of harm sustained by government bodies during the performance of their not-for-profit political tasks. Nor does there appear to be any justification for such an exclusion. In particular, there appears to be no reason why the right to demand compensation for harm caused by a cartel should be conferred on private operators acting in the performance of their business tasks and for profit, but not on government operators performing their tasks in the public interest without any profit motive.

91.      On the contrary, as explained above, to restrict eligibility for compensation to losses incurred while engaging in competition for profit would be to disregard the complexity of market activities and the interventions of government operators in connection with market activities. (65) This complexity of the interplay of economic situations and causal links is illustrated in this case by the fact that, as a lender, the Province of Upper Austria created funding opportunities for the elevator customers and thus created much of the demand on the market affected by the elevator cartel. There appears to be no reason why, as one of the pillars supporting a sales market affected by a cartel, such an operator should be excluded from the outset from the protection afforded by Article 101 TFEU.

92.      This is particularly true in that, although by granting funding, the Province of Upper Austria did not act for profit or as a competitor, it did nonetheless participate in economic life as an independent unit and, in that capacity, it sustained the losses being claimed in the main proceedings.

93.      Thus, the right of the Province of Upper Austria to claim compensation does not conflict with the view raised by the referring court and certain parties and expressed by German commentators in light of the provisions of German law (66) that, as a matter of principle, only economic operators are entitled to demand compensation for harm caused by a cartel, while shareholders, executive officers, employees or even investors of an affected undertaking are not. (67)

94.      It is not necessary in this case to comment on that discussion; suffice it to say that the situation of the Province of Upper Austria as a government lender is in any case not comparable to that of a shareholder, executive officer, employee or investor of an undertaking harmed by a cartel. After all, executive officers, shareholders and employees of, as well as investors in, limited companies do not represent an independent unit in economic life in that function and, as a rule, their loss lies in the fact that an undertaking participating in economic life depreciates in value or sustains some other loss. Conversely, government lenders such as the Province of Upper Austria do represent an independent unit in economic life and their loss does not lie in the fact that another undertaking has depreciated in value or sustained a loss as a result of price-fixing. On the contrary, the Province of Upper Austria itself sustained its own losses in this case in its capacity as a government lender.

(3)    The provisions of Directive 2014/104

95.      Last but not least and contrary to the view expressed by ThyssenKrupp, it does not follow from the special provisions of Directive 2014/104 on the right of suppliers and indirect customers of cartel members to compensation (68) that government lenders such as the Province of Upper Austria are denied the right to claim antitrust damages. On the contrary, those provisions are explained by the fact that harm to suppliers and indirect customers along a cartel’s supply and sales chain is a very common problem and is therefore open to regulation in the form of general provisions.

96.      However, these provisions do not suggest, conversely, that the legislature intended to restrict the group of persons entitled to antitrust damages to direct and indirect operators on a market affected by a cartel or to market participants in general and to deprive other injured parties of their right to compensation which flows directly from Article 101 TFEU and is therefore anchored in primary law. On the contrary, the legislature expressly stipulated, without any form of restriction, in Article 3 of Directive 2014/104 that Member States have an obligation to ensure that any natural or legal person who has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm. (69)

(4)    Interim conclusion

97.      It follows from all the foregoing that government lenders such as the Province of Upper Austria are covered by the protective purpose of the prohibition on price-fixing laid down in Article 101 TFEU. They may therefore demand compensation if they sustain harm as the result of price-fixing and if there is a sufficiently direct link between that harm and the price-fixing in question.

(b)    The reality and eligibility for compensation of the losses sustained by the Province of Upper Austria

98.      The elevator manufacturers and the Commission take the view that, even if a government lender such as the Province of Upper Austria was covered by the protective purpose of Article 101 TFEU, the losses claimed by the Province would not qualify for compensation.

99.      They contend that the funds used by the Province of Upper Austria for the loans granted on preferential terms were after all funds earmarked for housing developments that could not have been used for other purposes. Furthermore, they argue that the total amount of funding available each year is stipulated in advance and thus independent of the cost of the individual construction projects funded, including the allegedly inflated costs of the elevators installed caused by the cartel. Finally, they contend that it is clear from the past practice of the Province that the available funding is taken up in full every year and that, even if that were not the case, the remaining funds would anyway have again been appropriated the following year for the purpose of funding housing developments.

100. Therefore, the harm sustained because the individual loans based on the respective construction costs were allegedly higher than they would have been without the elevator cartel due to the inflated prices of the elevators caused by that cartel (70) could at most lie in the fact that the Province of Upper Austria was able to grant a smaller number of loans on preferential terms than would have been the case without the cartel given that, had each individual loan been smaller, more loans would have been granted overall and therefore more housing projects could have been funded.

101. Building on that line of argument, the elevator manufacturers take the view, first, that the Province of Upper Austria sustained no – or, at least no quantifiable – financial harm and at most sustained political damage as a result of the elevator cartel, because it was able to implement its housing funding policy to a lesser extent as a result of the elevator cartel than it would have done under normal circumstances, and that the harm was sustained, if at all, by the general public rather than by the Province of Upper Austria itself.

102. Second, the Commission and the elevator manufacturers argue that the loss of interest claimed by the Province of Upper Austria is purely speculative and hypothetical, as the funds earmarked for housing funding could not have been profitably invested elsewhere.

103. On a preliminary note, it must be noted that the elevator manufacturers clearly have a subliminal wish to deny that the funding loans granted by the Province of Upper Austria were in fact higher due to the inflated prices of the elevators caused by the cartel than they would have been without the cartel. However, any such argument must be rejected. That is because the referring court considers that both the fact that the prices of elevators on the Austrian market in the relevant period were higher due to the elevator cartel than they would have been under normal conditions of competition and the fact that the funding loans were based on the construction – and thus also the elevator costs have been proven and are not seriously contested by any of the parties. Therefore, the answer to the question referred must also be based on those facts.

104. That said, neither the argument that the loss of interest claimed is hypothetical (1) nor the argument that the harm claimed in this case is purely political (2) support the contentions of the elevator manufacturers and the Commission.

(1)    Eligibility for compensation of the loss of interest claimed by the Province of Upper Austria in the main proceedings

105. The elevator manufacturers are right to admit that the general public sustained harm in this case by reason of the fact that fewer funding loans could be granted due to the inflated prices of the elevators caused by the cartel than would have been the case without the cartel as, after all, the Province of Upper Austria was ultimately able to finance fewer construction projects and implement its housing funding policy to a lesser extent than it would have been able to without the cartel. The argument made by the elevator manufacturers at the hearing, that there was never enough money in the funding pot and that beneficiaries were always subject to waiting times, illustrates the reality of the harm caused that way.

106. However, the line of argument developed by the elevator manufacturers based on that fact fails on two counts: first, because it appears to equate the harm to the general public identified above with the losses for which the Province of Upper Austria is claiming compensation in the main proceedings and, second, because it appears to be based on the premiss that any such harm sustained by the general public does not of itself qualify for compensation.

107. In the first place, it must be clarified that the harm sustained by the general public because fewer social construction projects could be funded than without the cartel is not the same as the loss of interest claimed by the Province of Upper Austria in the main proceedings.

108. Although both are to be attributed to the same fact, namely that the Province of Upper Austria disbursed higher loans due to the overpriced elevators than it would have done without the cartel, the fact that, simply put, the Province of Upper Austria would have had more money available without the cartel can be depicted as harm in various ways.

109. Thus, first, one could assume that that money would have funded more housing projects and that the harm lies in the fact that that housing does not exist; that is the political harm to the general public admitted by the elevator manufacturers.

110. Second, one could argue that the Province of Upper Austria would not have needed to raise the additional money disbursed on the financial market or could have used it to repay outstanding loans.

111. Third and finally, the harm could be depicted as the loss sustained because the additional funding repaid by the beneficiaries to the Province of Upper Austria at a discounted interest rate could have been invested at a higher rate of interest.

112. Only the last two depictions of harm correspond to the losses being claimed by the Province of Upper Austria in the main proceedings. They both define the harm sustained as loss of interest caused by the fact that the overpayments made by the Province of Upper Austria as a result of the cartel were repaid by the beneficiaries at a discounted interest rate.

113. Thus, in both cases, the harm is equal to the difference between the interest paid back by the beneficiaries and the interest that would have been payable on the overpayments at the standard interest rate which, in the case of the Province of Upper Austria, would have been the average yield on government bonds. It ultimately makes no difference if this difference is classed as loss of profit, because the Province of Upper Austria could have invested the additional money disbursed at the average yield on government bonds, or as a loss sustained because the Province of Upper Austria itself had to raise that money at the average rate of interest on government bonds. Loss of interest income and loss of interest incurred by being deprived of a certain sum of money for a certain period of time are after all ultimately two sides of the same coin, in that the sum of money in question could neither be invested nor used to engage in economic activity.

114. The disadvantage of being deprived of a certain sum of money for a certain period of time as well as the advantage of having a certain sum of money at ones disposal for a certain period of time are usually compensated in the way that amounts of money that have to be paid back have to be repaid together with the interest that has accrued thereon at a standard rate from their due date. For example, sums of money which EU bodies have to reimburse further to judgment of the Court of Justice or amicable agreement have to be repaid with interest. (71) Likewise, reimbursable aid recovered under a Commission recovery order has to be repaid with interest. (72)

115. If unlawful aid is found by the Commission at a later date to be compatible with the common market, the unjustified advantage to the beneficiary of having had the aid at its disposal before the Commission’s decision on its compatibility is negated by the fact that, although the aid itself does not have to be repaid, the interest that would have been payable had the amount in question been borrowed pending the Commission’s decision does have to be paid. (73) If unlawful aid took the form of an interest-free loan or a loan granted at a discounted interest rate, the recoverable amount is equal to the difference between the interest payable at the market rate and the interest actually paid. (74)

116. The latter situation is similar to the present case, in that the loss claimed by the Province of Upper Austria does not include reimbursement of the overpayments made as a result of the cartel as such, but only reimbursement of the interest that would have accrued on the overpayments made by the beneficiaries as a result of the cartel at the standard interest rate, less the discounted interest already paid to the Province of Upper Austria by the beneficiaries. The Province of Upper Austria is indeed not seeking reimbursement of the actual overpayments made as a result of the cartel, as the price surcharge was paid by the funding beneficiaries out of the soft loans granted by it rather than by the Province of Upper Austria itself.

117. In that sense, this case differs from a case in which the construction projects were financed on market terms. In that case, the lender would not have sustained any harm, as the loans granted would have been repaid with interest at market rates, but the developer’s interest expenses would have been commensurately higher and would no doubt have had to be reimbursed by the cartel members. The fact that, instead, a government lender granted funding on preferential terms does not justify limiting the liability of the cartel members.

118. After all, in the present case, the same cause, namely the price surcharge caused by the cartel, resulted in harm on two different counts: first, the harm sustained by the beneficiaries in the form of the price surcharge caused by the cartel plus the discounted interest paid to the Province of Upper Austria for providing that sum and, second, the harm sustained by the Province of Upper Austria in the form of the interest income that would have been payable at the standard interest rate on the additional part of the soft loans to which the cartel gave rise, less the reduced interest received from the beneficiaries for those additional funds at a discounted interest rate. (75)

119. That means, first, that the elevator manufacturers’ argument, that the damage was in fact sustained by the beneficiaries rather than by the Province of Upper Austria, must be rejected. The same applies to the Commission’s argument that the loss of interest in this case is countervailed by the fact that the amount corresponding to the harm to the beneficiaries (price surcharge plus interest thereon at the discounted rate) has to be repaid with interest. That is because both arguments erroneously equate the harm to the beneficiaries with the losses incurred by the Province. Furthermore, in its argument, the Commission has confused the fact that the losses being claimed by the Province are of themselves loss of interest with the fact that all manner of antitrust damages, i.e. irrespective of whether they are loss of interest, losses due to inflated prices or other losses, must be reimbursed together with the interest that has accrued thereon since their due date. (76)

120. Second, it follows from the nature of the losses being claimed by the Province of Upper Austria that the argument of the elevator manufacturers and the Commission, that these are simply hypothetical losses as the Province of Upper Austria could not have profitably invested the inflated loans caused by the cartel, is misguided. That is because, as explained in points 114 and 115 of this Opinion, it is standard legal practice to construe deprivation of a certain amount of money over a certain period of time as a financially tangible loss, without the need for further substantiation. It is likewise standard legal practice to depict that loss as the interest income that would have accrued over that period at the applicable interest rate on the amount in question.

121. Thus, the argument of the Commission and the elevator manufacturers, that the damage being claimed by the Province of Upper Austria is additional interest income and thus lucrum cessans which the Province could only have realised had the amounts in question been used, contrary to their intended purpose and in breach of the law, for speculative transactions on the financial market rather than to grant soft loans to fund housing developments, must be rejected. In fact, the losses for which the Province of Upper Austria is claiming compensation are after all actual losses and thus damnum emergens which, as explained in points 114, 115 and 120 of this Opinion, were incurred because the Province of Upper Austria did not have the inflated loan amounts at its disposal over the relevant period.

122. It follows from this that the argument that the Province of Upper Austria has either not demonstrated adequately that it could have invested the amounts in question at the average yield on government bonds or has not argued adequately or in time that it itself had to borrow those amounts at that interest rate or should have used them to repay outstanding loans is also misguided. That is because the purpose of a statutory interest claim is precisely to allow evidence of the actual yield on an investment opportunity to be dispensed with.

123. As the Province of Upper Austria demonstrated at the hearing, Austrian case-law itself establishes the principle whereby government bodies should invest available funds in fixed-yield government bonds and use the relevant interest rate as a benchmark for calculating losses incurred as a result of a periodic lack of such funds. According to the Province of Upper Austria, that case-law was expressly applied to its losses in this case.

124. That means that a government lender such as the Province of Upper Austria in a situation such as this does not have to demonstrate and prove that it could have invested the amount in question more profitably or used it to repay outstanding loans. On the contrary, it suffices if such a lender demonstrates before the national court the amount of which it was deprived and for how long and, possibly, what the relevant interest rate would have been. As the Province of Upper Austria correctly states, imposing an additional burden of proof on government lenders that they had the authority to invest the amounts in question accordingly or to use them to repay their own loans would be tantamount to unjustified unfavourable treatment of government operators compared to private operators, to which no such burden of proof applies.

125. Therefore, it should be noted only for the record that the Province of Upper Austria has convincingly demonstrated in these proceedings that it had both the authority and the obligation in terms of asset management either to invest funds earmarked for housing development funding which were available in the short term in fixed-yield government bonds or to use them to repay outstanding loans pending their appropriation for their intended purpose (disbursement to beneficiaries). The Province of Upper Austria also explained that it based its losses in its opening argument in the main proceedings both on the opportunity to invest the amounts in question on market terms and the opportunity to use those amounts to repay its own loans. This appears to be corroborated by the order of the court of second instance in the main proceedings. (77)

126. It follows from all the foregoing that losses such as those being claimed by the Province of Upper Austria in the main proceedings are to be reimbursed on the basis of Article 101 TFEU, from which it follows directly that anyone who sustains harm as a result of infringement of competition law is entitled to compensation for that harm. Based on the division of tasks between the Court of Justice and the national courts, it is now for the referring court to determine the precise extent of the damage to be compensated. (78)

(2)    Harm to the general public from inadequate housing funding as a result of the cartel

127. As demonstrated above, the argument that the purely political harm caused to the general public in this case by the elevator cartel does not qualify for compensation has no bearing on the losses addressed in the main proceedings and is therefore misguided. (79) Therefore, it needs to be added only for the sake of completeness that this argument also fails on the merits.

128. Irrespective of the question of how losses incurred are exactly calculated, which has to be answered in a second step, it would after all be an unacceptable expression of the principle of ‘privatise the gains, socialise the losses’ if harm to the general public due to inadequate implementation of a public welfare obligation as a result of a cartel were considered per se to be ineligible for compensation or even non-existent.

129. Although, in terms of its materiality and specific depiction and its financial nature and calculability, it may prove difficult to quantify harm to ‘the general public’, in such cases it is possible to have recourse to economic model calculations or consider conceptualising the harm in question as non-material damage.

130. Likewise, it is certainly conceivable that there may be cases in which it is difficult to identify the specific legal entity to which harm sustained by the ‘general public’ should be repaid. However, in such cases, it is possible to consider having a representative of the public interest demand compensation for the harm sustained and making the injuring party pay the compensation into a fund that benefits the general public. (80)

(3)    Interim conclusion

131. It follows from the foregoing considerations that the losses sustained by the Province of Upper Austria because of the fact that the loans granted as a percentage of the cost of the product were higher than they would have been without the anticompetitive agreement and therefore those sums could not be invested at market interest rates or used to repay outstanding loans, are losses that qualify for compensation under Article 101 TFEU, inasmuch as there is a sufficiently direct link between those losses and the price-fixing concerned.

(c)    The sufficiently direct link between the infringement and the harm

132. It follows from the statements thus far that two of the three conditions for compensation of the losses incurred by the Province of Upper Austria, namely the fact that the injured party is covered by the protective purpose of Article 101 TFEU and the existence of actual losses that qualify for compensation, are satisfied. Therefore, the crucial question now is whether there is a sufficiently direct causal link between the elevator cartel and the losses incurred by the Province of Upper Austria.

133. The elevator manufacturers and the Commission contest this. First, they argue that there is not a sufficiently specific link between the inflated prices of the elevators caused by the cartel and the funding measures of the Province of Upper Austria (1). Second, they argue that the elevator manufacturers in the cartel could absolutely not foresee the losses incurred by the Province of Upper Austria (2).

(1)    Specific link between the price of the elevators and the size of the loans

134. The elevator manufacturers do not seriously question that the existence of a sufficiently direct link between the inflated prices of the elevators caused by the cartel and the losses incurred by the Province of Upper Austria cannot be contested based on the fact that the Province of Upper Austria itself had no direct contractual link with the elevator manufacturers in the cartel. Moreover, any such argument would be doomed to fail as it has been clear at the very least since the judgment in Kone that that is beside the point. (81)

135. However, the elevator manufacturers argue that, were a sufficiently direct link between the elevator cartel and the funding losses incurred by the Province of Upper Austria to be acknowledged, that would result in unlimited liability on the part of cartel members for all consequential damage of direct harm caused by the cartel that would simply have no further bearing on the relevant market for the cartel.

136. They argue that although, in principle, public funding might well influence building activity, the same applies to the interest rate policy of banks, the configuration of the tax system or other regulatory activities of the State and that to assume a sufficiently direct link between the elevator cartel and the losses incurred by the Province of Upper Austria in this case would be tantamount to assuming that all losses incurred by the public sector in the performance of even very general fiscal, regulatory or other measures qualify for compensation simply because they might have an impact on a market affected by a cartel.

137. That argument must be rejected.

138. The measure implemented by the Province of Upper Austria at issue in the main proceedings is not after all a general measure comparable to a fiscal or other regulation. Although its housing funding policy is a general social policy measure designed to support both individual beneficiaries and the general welfare needs of the province, the funding loans granted under that general housing funding policy, during the course of which the contested losses were incurred, represent a bundle of very specific measures adopted case by case for individual beneficiaries.

139. As the Province of Upper Austria has demonstrated, not only is the size of each loan calculated as a specific percentage of the development costs, but also the precise breakdown of those costs is detailed in the loan documents, meaning that the precise cost of each elevator installed can be identified.

140. The question of whether the Province of Upper Austria had any influence over the breakdown of those costs and, in particular, the selection of elevators chosen, which is contested by the elevator manufacturers, is irrelevant. What is certain and suffices is that the individual projects funded were listed in detail, together with the installed elevators and the cost of them, in the funding documents. Moreover, the Province of Upper Austria relied on this in the main proceedings for the purpose of calculating its precise losses. (82)

141. Therefore, the losses being claimed are by no means some vague effect of a general regulatory measure that coincidentally impacted a market affected by a cartel. On the contrary, the link between the inflated price of the elevators installed and the size of each funding loan calculated as a percentage thereof can be specifically proven in each individual case. Thus, there is a sufficiently direct link between the losses incurred by the Province of Upper Austria and the inflated prices on the Austrian elevator market caused by the cartel and to acknowledge that link in this case is by no means tantamount to establishing unlimited liability on the part of the cartel members.

(2)    Foreseeability of the losses of the Province of Upper Austria for the members of the elevator cartel

142. As already demonstrated above, the purpose of considering if there is a sufficiently direct causal link between an infringement and harm is to ensure that a person who has acted unlawfully is liable only for such damage that he could reasonably have foreseen. (83)

143. Contrary to the Commission’s contention, the question of whether the persons involved in an infringement of competition law could foresee a particular type of harm is not simply a question of fact which it is purely and simply for the referring court to consider. As explained previously, it follows on the contrary from the judgment of the Court of Justice in Kone that, in preliminary ruling proceedings, the Court of Justice examines, in an abstract and general way, whether the conditions under EU law for compensation of the harm disputed in the main proceedings are satisfied and that it is then for the referring national court to examine if those conditions are in fact satisfied in the specific case in question. (84)

144. Thus, the Court of Justice expressly examined in Kone if, from an abstract point of view, umbrella pricing, which describes a situation where undertakings not party to a cartel set their prices higher as a result of the inflated market prices charged by the cartel than they would otherwise have been able to under competitive conditions, is a foreseeable potential effect of cartels which cannot be ignored by the members of the cartel. As it found that it was, it was then for the referring court to consider, based on the circumstances of the case and the specific aspects of the relevant market, if the cartel in question was liable to have the effect of umbrella pricing being applied by third parties acting independently and if those circumstances and specific aspects could not be ignored by the members of that cartel. (85)

145. Therefore, it is necessary to consider in this case if, from a general and abstract point of view, funding losses such as those for which the Province of Upper Austria is seeking compensation in the main proceedings are a foreseeable potential effect of a cartel established to secure for its members higher prices than those achievable under normal market conditions.

146. The elevator manufacturers and the Commission contend that this can by no means be assumed. They argue that, on the contrary, the attempt to present the alleged losses of the Province of Upper Austria in a brief and comprehensible way of itself illustrates just how artificial and ‘far-fetched’ they are; that no prudent elevator manufacturer can and should expect a public authority acting not for profit to use public funds contrary to their intended purpose and in breach of the law to speculate on the financial market, rather than to perform their political welfare tasks; that such conduct conflicts with everyone’s general experience in life and that, therefore, any harm incurred as a result of the loss of such opportunity for speculation could not possibly be foreseen by economic operators such as the elevator manufacturers.

147. There is no basis for that line of argument.

148. First, it is perfectly normal in the construction industry for developers to borrow to finance their projects. The members of a cartel intended to obtain higher prices than those achievable under normal market conditions can therefore expect losses caused by inflated prices to be passed on to the developers’ lenders.

149. Next, as the elevator manufacturers themselves admitted at the hearing, the funding measures at issue in this case were implemented within a fixed legal framework of which the economic operators active in the construction industry or which manufacture components such as elevators are well aware. Therefore, the elevator manufacturers should have known that their inflated prices were likely to be financed at least in part from soft funding loans.

150. Finally, in order to be able to foresee that a government lender such as the Province of Upper Austria might incur a loss of interest because it disbursed larger funding loans as a result of the cartel, an economic operator certainly need not assume that that government operator is acting contrary to its intended purpose and in breach of the law and its competences by using the funds available to it which have been earmarked for welfare projects to speculate on the financial market for profit rather than for their original purpose. On the contrary, as explained in points 114, 115 and 120 of this Opinion, it is standard legal practice to depict unlawful deprivation of a certain amount of money for a certain period of time as loss of interest.

(3)    Interim conclusion

151. It follows from all the foregoing that there is a sufficiently direct link between the elevator cartel and losses such as those sustained by the Province of Upper Austria because the loan amounts granted as a percentage of the cost of the product were higher than they would have been without the anticompetitive agreement and therefore those sums could not be invested at market interest rates or used to repay outstanding loans and that the cartel members could have foreseen those losses.

VI.    Conclusion

152. On the basis of the above considerations, I propose that the Court of Justice give the following answer to the reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria):

Article 101 TFEU is to be interpreted as meaning that persons who are not active on a market affected by a cartel as a supplier or customer may also demand compensation for harm from cartel members. That includes state lenders which grant loans to customers of the cartel members on preferential terms and which sustain losses because the loan amounts granted as a percentage of the cost of the product were higher than they would have been without the cartel and therefore those sums could not be invested at market interest rates or used to repay outstanding loans.

1      Original language: German.

2      See judgments of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684); of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317).

3      See, similarly, judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 18); see also my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 17).

4      Directive of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

5      Proceedings at first instance were initiated by the Province of Upper Austria before the Handelsgericht Wien (Vienna Commercial Court, Austria) on 2 February 2010; according to Article 23 of Directive 2014/104, it entered into force on the twentieth day following that of its publication in the Official Journal, i.e. on 25 December 2014.

6      See, in this regard, my Opinion in Cogeco Communications (C‑637/17, EU:C:2019:32, point 60).

7      According to recital 12, Directive 2014/104 ‘reaffirms the acquis communautaire on the right to compensation for harm caused by infringements of Union competition law, particularly regarding standing and the definition of damage, as stated in the case-law of the Court of Justice, and does not pre-empt any further development thereof’.

8      See also judgments of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 18 et seq.); of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 10 et seq.); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraphs 5 and 6). See also my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 5).

9      Order of the Oberlandesgericht Wien (Vienna Higher Regional Court, Austria), sitting as antitrust court, of 14 December 2007 (ref. 25 Kt 12/07).

10      Order of the Oberster Gerichtshof (Supreme Court), sitting as higher antitrust court, of 8 October 2008 (ref. 16 Ok 5/08).

11      See, in this regard, judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 7 et seq.); see also my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 6 et seq.).

12      This follows from the submissions by the Province of Upper Austria reproduced in the part judgment of the Handelsgericht Wien (Vienna Commercial Court), the court of first instance in the main proceedings, of 21 September 2016 (ref. 40 Cg 65/10z-66, p. 5 and 6) and in the order of the Oberlandesgericht Wien (Vienna Higher Regional Court), the court of second instance in the main proceedings, of 27 April 2017 (ref. 5 R 193/16p-73, p. 6 and 7).

13      The Province of Upper Austria is party to the main proceedings as Claimant No 1. The other claimants in those proceedings are housing development companies. Due to the part judgment of the Handelsgericht Wien (Vienna Commercial Court), the court of first instance in the main proceedings, of 21 September 2016 (ref. 40 Cg 65/10z-66), this request for a preliminary ruling only concerns the proceedings brought by the Province of Upper Austria.

14      Part judgment of the Handelsgericht Wien (Vienna Commercial Court) of 21 September 2016 (ref. 40 Cg 65/10z-66).

15      Order of the Oberlandesgericht Wien (Vienna Higher Regional Court), sitting as court of appeal, of 27 April 2017 (ref. 5 R 193/16p-73).

16      Judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317).

17      Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 27 et seq.).

18      Ref. 9 Ob 44/17m.

19      See point 11 of this Opinion.

20      Judgments of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraph 17 et seq.); of 26 November 2015, Maxima Latvija (C‑345/14, EU:C:2015:784, paragraph 11 et seq.); of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 16 et seq.); and of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraph 28 et seq.).

21      See, for example, order of 21 December 1995, Max Mara (C‑307/95, EU:C:1995:465, paragraph 5), and judgments of 13 December 2012, Caves Krier Frères (C‑379/11, EU:C:2012:798, paragraph 35 and 36), and of 10 January 2019, ET (C‑97/18, EU:C:2019:7, paragraph 24).

22      Judgments of 15 June 1999, Andersson and Wåkerås-Andersson (C‑321/97, EU:C:1999:307, paragraph 31 et seq.); of 10 January 2006, Ynos (C‑302/04, EU:C:2006:9, paragraph 30 and 34 et seq.); and of 27 June 2018, Varna Holideis (C‑364/17, EU:C:2018:500, paragraph 17).

23      See judgment of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraphs 61and 62), and my Opinion in Toshiba Corporation and Others (C‑17/10, EU:C:2011:552, point 49 et seq.).

24      See judgment of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 44 et seq.), and my Opinion in Toshiba Corporation and Others (C‑17/10, EU:C:2011:552, point 37 et seq.).

25      See point 11 of this Opinion.

26      See, with regard to the assessment of the future effects of facts that occurred before the accession of a Member State to the EU in accordance with the later legal position, judgment of 3 September 2014, X (C‑318/13, EU:C:2014:2133, paragraph 21 et seq.), and my Opinion in X (C‑318/13, EU:C:2014:333, point 18 et seq.).

27      Judgments of 7 September 1999, Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); of 23 January 2018, F. Hoffmann-La Roche and Others (C‑179/16, EU:C:2018:25, paragraph 45); of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others (C‑426/16, EU:C:2018:335, paragraph 31); and of 25 July 2018, Confédération paysanne and Others (C‑528/16, EU:C:2018:583, paragraph 73).

28      Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, point 39).

29      See, to that effect, judgments of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraphs 23 to 26); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 58 to 61 and 63); of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraphs 20 to 22); and of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:204, paragraphs 24 to 26). See also my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 26).

30      See judgments of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 29); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 62 and 64); of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraphs 24 to 26); and of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:204, paragraph 27).

31      See, in particular, recitals 3, 4, 11, 12 and 13 and Articles 1, 3 and 4 of Directive 2014/104.

32      See Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, point 33): ‘Yet which issues regarding actions for damages are governed by EU law and which are, instead, governed by the domestic laws of the Member States?’

33      See my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 23) and, by way of example of such rules governing enforcement of the right to compensation, judgment of 28 March 2019, Cogeco Communications (C‑637/17, EU:C:2019:263, paragraph 42 et. seq. and 56 et seq.), and my Opinion in Cogeco Communications (C‑637/17, EU:C:2019:32, point 75 et seq. and 87 et seq.).

34      Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, points 40 and 41).

35      Judgment of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:204, paragraph 28, with reference to points 60 to 62 of the Opinion of Advocate General Wahl in that case (EU:C:2019:100)).

36      See point 40 and footnote 29 of this Opinion and the case-law cited.

37      See judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 95 to 97), and my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 27).

38      See, for the situation in Kone, my Opinion in that case (C‑557/12, EU:C:2014:45, point 19): the question in that case was whether there was a sufficiently close link between the cartel and the losses caused by the umbrella effect of the cartel. There is said to be ‘umbrella pricing’ when, due to the inflated market prices as a result of a cartel, undertakings not party to the cartel set their prices higher than they would otherwise have been able to under competitive conditions.

39      Judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 64) (emphasis added).

40      See, in this regard, my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, points 35 and 53 et seq.)

41      Judgments of 18 January 1984, Ekro (327/82, EU:C:1984:11, paragraph 11); of 11 July 2006, Chacón Navas (C‑13/05, EU:C:2006:456, paragraph 40); and of 21 December 2016, Associazione Italia Nostra Onlus (C‑444/15, EU:C:2016:978, paragraph 66).

42      See, to that effect, my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 29). The crucial importance of uniform compensation rules under antitrust law is now underpinned by recitals 8 and 9 of Directive 2014/104.

43      See judgment of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:204, paragraph 28, with reference to points 60 to 62 of the Opinion of Advocate General Wahl in that case (EU:C:2019:100)).

44      Judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraphs 24 and 32).

45      See Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, point 37 and footnote 20), and judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 27 et seq., especially paragraphs 34 and 37). By way of comparison, Advocate General Wahl cites as examples of an examination based on the principles of equivalence and effectiveness the judgments of 14 June 2011, Pfleiderer (C‑360/09, EU:C:2011:389, paragraphs 30 to 32), and of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraphs 32 to 34), to which the judgment of 28 March 2019, Cogeco Communications (C‑637/17, EU:C:2019:263, paragraphs 43 to 55) can now be added.

46      See points 1 and 36 of this Opinion.

47      Judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317).

48      See judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 27 et seq.).

49      See also in that sense, judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 65).

50      See, with regard to the conditions governing the non-contractual liability of EU bodies, judgments of 29 September 1982, Oleifici Mediterranei v EEC (26/81, EU:C:1982:318, paragraph 16), and of 18 March 2010, Trubowest Handel and Makarov v Council and Commission (C‑419/08 P, EU:C:2010:147, paragraph 40). See, for compensation claims by individuals against Member States on the grounds of infringement of EU law, judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 40); of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51); and of 14 March 2013, Leth (C‑420/11, EU:C:2013:166, paragraph 41).

51      See judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 34). See, also to that effect, judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 66).

52      See, to that effect, judgment of 11 September 2018, IR (C‑68/17, EU:C:2018:696, paragraph 56).

53      See recitals 3 and 13 of Directive 2014/104.

54      Judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraphs 43 and 44).

55      See, to that effect, judgments of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 32), and of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraph 36).

56      See, to that effect, judgments of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 26); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 60); and of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 21).

57      See judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 23 and the case-law cited).

58      Judgment of 6 June 2013, Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraph 24). See also, with regard to both functions of the right to antitrust damages, my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, points 59, 60 and 71), and the Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, point 28).

59      Similarly, an undertaking that itself is not active on the market affected by a cartel as a supplier or customer can also contribute to the prevention, restriction or distortion of competition on that market and thus infringe Article 101 TFEU; see judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraphs 26 and 33 et seq.).

60      See point 40 of this Opinion and the case-law cited in footnote 29.

61      Judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraphs 19, 33 and 37).

62      See, in this regard, my Opinion in Kone and Others (C‑557/12, EU:C:2014:45, point 33).

63      See, in this regard, points 66 and 67 above and point 132 et seq. of this Opinion below.

64      See point 80 of this Opinion.

65      See point 79 of this Opinion.

66      Paragraph 33(3) of the German Gesetz gegen Wettbewerbsbeschränkungen (Act against Restraints of Competition, GWB) defines persons affected by an infringement of competition law and thus entitled to compensation as ‘competitors or other market participants impaired by the infringement’ (emphasis added).

67      See Logemann, H. P., Der kartellrechtliche Schadensersatz [Antitrust Damages], Duncker & Humblot, Berlin, 2009, pp. 243 and 244; Emmerich, V., in Immenga, U., and Mestmäcker, E.J., Wettbewerbsrecht [Competition Law], 5th edition, Volume 2, Beck, Munich, 2014, Paragraph 33 GWB, point 14; Heinze, C., Schadensersatz im Unionsprivatrecht [Damages under EU Private Law], Mohr Siebeck, Tübingen, 2017, pp. 191 and 192. Conversely, Engelhoven, P., and Müller, B., Kartellschadensersatz für Aktionäre einer kartellgeschädigten AG? [Antitrust damages for shareholders of a plc harmed by a cartel?], Wirtschaft und Wettbewerb (WuW) 2018, p. 602 et seq., posit, with reference to the case-law of the Court of Justice, that shareholders have standing to bring their own claim for damages which do not coincide with those of the company.

68      See recitals 38 to 44 and Chapter IV of Directive 2014/104 (Article 12 et seq.) entitled ‘The passing-on of overcharges’.

69      See also, to that effect, recitals 11, 12 and 13 and Article 2(6) of Directive 2014/104.

70      See, with regard to the calculation of the funding loans and the losses sustained by the Province of Upper Austria, points 13 to 15 of this Opinion.

71      See Article 108(4) and Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

72      See recital 25 and Article 16(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

73      See judgment of 12 February 2008, CELF and Ministre de la Culture et de la Communication (C‑199/06, EU:C:2008:79, paragraph 51 et seq.).

74      See judgments of the General Court of 30 April 1998, Cityflyer Express v Commission (T‑16/96, EU:T:1998:78, paragraphs 8, 43 and 50 et seq.); of 27 September 2012, Italy v Commission (T‑257/10, not yet published, EU:T:2012:504, paragraphs 3, 4 and 146 et seq.); and of 27 September 2012, Wam Industriale v Commission (T‑303/10, not published, EU:T:2012:505, paragraphs 3, 4 and 154 et seq.).

75      The soft promotional loans granted therefore differ from the lost subsidies in the form of direct grants or interest subsidies whereby the Province of Upper Austria reimburses beneficiaries for a portion of their development costs or loan instalments, which are not the subject matter of these preliminary ruling proceedings (see points 12 to 14 of this Opinion). With these lost subsidies, the harm sustained by the Province and the beneficiaries from the price surcharge caused by the cartel overlap, inasmuch as the harm sustained by the Province is equivalent to the portion of the lost subsidies corresponding to the price surcharge paid by the beneficiaries as a result of the cartel. Therefore, in the main proceedings, the beneficiaries of direct grants transferred the portion of their claims against the cartel members based on the price surcharge paid, which corresponds to the lost subsidies of the Province of Upper Austria, to the Province, which is now seeking reimbursement of those losses from the members of the cartel; see the references in the judgments at first and second instance in the main proceedings referred to in footnote 12 of this Opinion.

76      Judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 97).

77      This follows from the record of that argument, even though the court of second instance ultimately held that the Province of Upper Austria had calculated its losses based on the loss of investment opportunity; see order of the Oberlandesgericht Wien (Vienna Higher Regional Court) sitting as appeal court (court of second instance in the main proceedings) of 27 April 2017 (ref. 5 R 193/16p-73, p. 10, 13, 48).

78      See, to that effect, point 46 of this Opinion and judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 95 to 98).

79      See points 105 to 112 of this Opinion.

80      A similar construct underpins, for example, ‘parens patriae antitrust actions’ under US law, which enable the state attorneys general to demand collective compensation on behalf of their citizens for scattered damage incurred by the public from inflated prices for consumer goods as the result of a cartel and to appropriate the proceeds from such actions for public welfare projects; see, in this regard, Farmer, S. B., ‘More lessons from the laboratories: Cy pres distributions in parens patriae antitrust actions brought by state Attorneys General’, Fordham Law Review, Vol. 68, 1999, p. 361 et seq.

81      Judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 33).

82      See order of the Oberlandesgericht Wien (Vienna Higher Regional Court) sitting as appeal court (court of second instance in the main proceedings) of 27 April 2017 (ref. 5 R 193/16p-73, p. 30 and 31).

83      See point 83 of this Opinion.

84      See points 66 to 68 of this Opinion.

85      Judgment of 5 June 2014, Kone and Others (C-557/12, EU:C:2014:1317, paragraphs 30 and 34).