Trucks

On 7 June, a hearing was held in the second group of cases relating to the truck cartel, including Stichting Trucks Cartel versus DAF, MAN,Volvo/Renault, Iveco, Daimler and Scania. During the hearing, four topics were discussed: the scope and basis of the claims, the assignment agreements, the indirect buyers (and the term ‘passing-on’) and the applicable law. At the hearing, the District Court announced its intention to ask questions about the applicable law, because it was not entirely certain about its own judgment on applicable law in the first group of cases. The District Court will render a judgment on 13 September 2023 with its intention to ask questions for a preliminary ruling, after which the parties can respond. The District Court intends to render a judgment with a decision on this intention on 8 November 2023.

On 28 April 2022, the Landgericht Stuttgart denied a claim from Themis Schaden GmbH, a German claim vehicle, against Daimler in a class action relating to the truck cartel.[1] Themis Schaden claimed for around 350 underlying freight forwarders an amount of approximately EUR 96 million in damage in connection with the truck cartel established by the European Commission in 2016 and 2017. However, the court did not award the claim. It concurred with Daimler’s defence that Themis Schaden had no claim because the assignment agreements were invalid. Under German law, claim vehicles and their assignment agreements must comply with the Rechtsdienstleistungsgesetz, the law that prescribes rules for claim vehicles. The court ruled that the assignment agreements used by Themis Schaden did not comply with said law. The court also held that the claimant’s assignment model ignored the limits of its licence for class actions and that the assignment model boiled down to an unsolvable conflict of interest for the claimant.

[1] Press release of Landgericht Stuttgart 28 April 2022, ‘Urteil der 30. Zivilkammer zum Lkw-Kartell’.

On 29 March 2022, there was a hearing at the district court of Amsterdam in the first group of cases relating to the truck cartel, in which 15 claimants instituted proceedings against DAF, Daimler, Iveco, MAN, Volvo/Renault and Scania. Two interlocutory judgments have already been rendered in the first group. The hearing in March concerned the admissibility of the claimants’ claim and the validity of the assignments, the applicable law and the offer by the trucks manufacturers to provide documents. On 13 July 2022, the District Court will rule on these topics and decide how the proceedings will be continued.

Various recent judgments of German Regional Courts have raised questions about the validity of litigation vehicles and assignment of claim models under German law, in particular the German Legal Services Act (RDG).[1] On 24 February 2021, the Regional Court of Hanover was critical of a claimant, Cartel Damages Claims (CDC), in a lawsuit for damages against the sugar producers Pfeifer & Langen, Nordzucker and Südzucker.^[2] CDC had asserted claims from a total of 63 companies and groups of companies. The amount in dispute was around 180 million euros.

CDC had bundled and asserted assigned claims from numerous companies in its action vehicle Retail Cartel Damage Claims SA. The companies involved are numerous large and small manufacturers of confectionery and other sugar-containing foods, as well as food retailers such as Rewe.

As in the decision in the Kaufland suit of 20 May 2020,[3] the court took the view that there was a violation of the Legal Services Act because CDC was pursuing claims from direct and indirect sugar buyers at the same time. The court considered that the decisive factor for the existence of a conflict of interest in this case was that the claimant was indisputably asserting claims from cedants from different market levels for the same sugar supply.

The defendants had argued that manufacturers’ damages would be mitigated if the manufacturers had passed on inflated sugar prices to retailers. The Regional Court therefore considered the bundled assertion of assigned claims of food manufacturers and traders to be a prohibited representation of conflicting interests:

“If claims for damages are asserted by direct customers and indirect customers at the same time, this constitutes a fundamental and irresolvable conflict of interests.

(aa) This applies at least with regard to the question of a possible passing-on of damages, i.e. the so-called passing-on. With regard to passing-on, direct customers must claim that they did not pass on the cartel-related excessive prices they paid, as the claimant does here for the direct customers; indirect customers, on the other hand, must claim the exact opposite in order to substantiate the damage they suffered.

(…) In the present lawsuit, the claimant must therefore simultaneously assert the non-reselling and the reselling, which, however, is logically mutually exclusive.”

The fact that the conflict of interests actually applied only to “less than 3.5%” of the total purchase volume could not help the claimants. The court considered “this would not change the fundamentally conflicting interests” and that article 4 RDG does not provide for “partial incompatibility”.

The claimants, on the other hand, had emphasised that they were all pursuing precisely the same goal. The judgement is not yet final.

[1] See Press release of 7 February 2020, Regional Court of Munich, case Az. 37 O 18934/17 and Regional Court of Hanover 20 May 2020, case no. 18 50/16.

[2] Regional Court of Hanover 24 February 2021, Case 18 O 34/17.

[3] Regional Court of Hanover 20 May 2020, case no. 18 50/16.

On 17 December 2020, the Advocate General’s opinion was published in case C-709/19, in which the Supreme Court put preliminary questions to the European Court of Justice on jurisdiction in class actions pursuant to the Brussels I Regulation (Recast). ^[1]Opinion of the Advocate General Campos Sanchéz-Bordona 17 December 2020, Case C-709/19. The underlying case pertains to a claim by the Dutch Association of Stockholders (VEB) about a decrease in the value of BP shares due to alleged deceit by BP regarding to an oil leak in the Gulf of Mexico. The District Court and the Court of Appeal had held earlier that the Dutch court does not have jurisdiction, as BP has its registered office in the United Kingdom.

The Advocate General’s response was that the place where the investment account is held does not provide a sufficient basis for the international jurisdiction of the Member State concerned without additional circumstances. The Advocate General also discussed other circumstances (such as consumers being included within those represented, and a settlement from a third country) which, in his opinion, likewise did not constitute special circumstances.

The Supreme Court had also asked whether the rules of jurisdiction should be applied differently (in other words: less strictly) in cases in which the VEB institutes a class action. According to the Supreme Court, the effectiveness of the class action mechanism would be lost if the VEB had to lodge a claim at every place where damage occurred. In the Advocate General’s view, the rules of jurisdiction in Article 7(2) of the Brussels I Regulation (Recast) should not be applied differently even in the case of a class action by the VEB. Although the Advocate General acknowledged the risk identified by the Supreme Court, he took the view that the regime under the Regulation offered no other option. The Advocate General’s response on this point is in line with the CDC judgment (C-352/13, EU:C:2015:335), in which the Court of Justice did not accept that transfer and bundling of claims could affect the determination of international jurisdiction.