The Finnish Asphalt Cartel Court Decision on Damages : An Important EU Precedent and Victory for Plaintiffs

In the historic Finnish Asphalt case, a court provided both considerable direct compensation for the 40 municipalities that sued and also several types of indirect relief. After laboriously weighing complex economic, statistical, and testimonial evidence, the Court boldly sided with the economic analysis of plaintiffs on the size of the overcharges. This private-damages case broke new ground by offering to plaintiffs a model decision that followed EU law with features that potentially could have achieved full compensation: lenient rules on time-barring; patient weighing of economic, documentary, and testimonial evidence; severe interest penalties to compensate victims for the time value of money; and generous legal fees for plaintiffs’ attorneys. We conclude, however, that only about 25 percent of the monopoly profits of the Finnish Asphalt cartel was actually recovered by all the victims for two principal reasons: (1) the State of Finland’s claims were denied because one of its agencies was aware of the collusion and (2) in the absence of a class-action mechanism small municipalities and private buyers could not sue for damages. Together with a record fine, about 63% of overcharges were recovered, a level insufficient to deter cartel formation