On 6 October 2021, the Court of Justice of the European Union ruled in the case of Sumal S.L. v Mercedes Benz Trucks Espana S.L., one of the cases it is handling in response to the truck cartel.[1] In 2016, the European Commission imposed a fine on the defendant’s German parent company, Daimler AG, for infringement of competition law in the truck cartel.[2] However, the Spanish company Sumal had not initiated cartel damages proceedings against Daimler AG but against its Spanish subsidiary. The claims were denied at first instance because this Spanish company was not the addressee of the Commission decision. The Barcelona Court of Appeal however had its doubts about this opinion and referred the case to the Court of Justice of the European Union.

The Court of Justice of the European Union arrived at a different decision. It held that a subsidiary could also be held liable if it formed an “economic unit” with the addressee parent company. The claimant therefore has to prove “the economic, organisational and legal links that unite the two legal entities” and “the existence of a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was held to be responsible.”

[1] EC decision of 6 October 2021, case C-882/19 (Sumal/Mercedes Benz Trucks Espana).

[2] See the Commission’s press release: “Antitrust: Commission fines truck producers € 2.93 million for participating in a cartel”, 19 July 2016

On 6 July 2021, the Amsterdam Court of Appeal rendered an interim judgment in the Air Cargo proceedings regarding the question of applicable law.[1] The proceedings were initiated by KLM, British Airways and Lufthansa and other airlines against the Dutch claim vehicles Equilib Netherlands B.V. and Stichting Cartel Compensation and concerned in particular the status of the cartel decision and the law applicable to the claims.

First of all, the Court of Appeal held that it could rely on the facts established by the European Commission in the cartel decision, even if an appeal is pending against this decision.

As far as applicable law is concerned, the Court of Appeal decided that Article 4 of the Unlawful Act (Conflict of Laws) Act (Wet conflictenrecht onrechtmatige daad “WCOD”) offers the relevant legal framework. The Court of Appeal found that, in principle, the law of the state of the airport of departure is applicable to each individual claim of each individual shipper per flight.

The Court of Appeal went on to note that this outcome would lead to a strong fragmentation of the applicable law. Strict application of Article 4 WCOD would lead to dozens of different applicable legal systems. In order to prevent this fragmentation, the Court of Appeal ruled first that the individual claims of each shipper must be considered as a whole, analogous to the concept of ‘a single continuous infringement’ as applied by the Commission in its cartel decision. Secondly, the Court of Appeal found that not only the airport of departure, but also the airport of arrival is relevant to the determination of the applicable law. The scope of Article 4 WCOD is not limited to the place where competition is directly harmed by the anti-competitive conduct, but also includes the place that has been affected indirectly (for example in case of umbrella damage).

As also confirmed by the Commission in its cartel decision,[2] the Aircargo cartel led to the restriction of competition in several places. The Court of Appeal ruled that, as a result, the claim of a single shipper is already governed by various applicable legal systems. The WCOD does not provide a solution for such a case. In order to fill this loophole in the legislation, the Court of Appeal found guidance in established (EU) principles, such as legal certainty and effectiveness. The Court of Appeal noted that the EU legislature provided for this issue in Article 6(3)(b) of Regulation (EC) No 864/2007 (also referred to as ‘Rome II’), in which the claimants are given the opportunity to choose the applicable law themselves under strict conditions.

Since the claimants in this case (Equilib and SCC) had requested the applicability of Dutch law, the Court of Appeal concluded that the claimants’ claims for damages are governed by Dutch law. This applies to claims relating to flights falling within the scope of the cartel decision (flights that have their departure and/or arrival within the EEA and Switzerland).

[1] Amsterdam Court of Appeal 6 July 2021, ECLI:NL:GHAMS:2021:1940.

[2] See the Commission’s press release of 17 March 2017: Antitrust: Commission re-adopts decision and fines air cargo carriers € 776 million for price-fixing cartel.

Renault Trucks, Daimler AG and other truck manufacturers confronted with extensive antitrust damages claims in Europe have become aware that, in April 2021, a Spanish court asked the CJEU to clarify whether customers who had purchased dump trucks could also claim compensation.[1] The question from the Provincial Court (audiencia provincial) of Pontevedra dates from April last year, but was only recently disclosed.

Renault Trucks is being sued by Dalarjo et al. in connection with the sale of various trucks and participation in the truck cartel.

Renault Trucks argues that dump trucks are not covered by this decision, because they are not used  on the road and have no registration number. Dalarjo et al. dispute this argument. The Provincial Court of Pontevedra has now asked the CJEU for the meaning of ‘medium heavy’ and ‘heavy’ trucks to be further clarified.

[1] Dalarjo and Others Case C-285/21 (Case in progress).

On 12 May 2021, Amsterdam District Court rendered a decision in the first wave of truck cartel cases that will have pleased the claimants in particular.[1] Claimants in this first wave of cases include Carlsberg Deutschland GmbH, Stichting Trucks Cartel Compensation and CDC (Retail Cartel Damage Claims S.A.). In this judgment, the District Court:

• rejected the truck manufacturers’ position that the facts as set out in the decision of the European Commission (“Commission”) were not entirely binding on the cartelists. Also referring to the Otis judgment[2] of the CJEU, the District Court considered in this respect that it was bound “to limit itself to the two infringing acts established by the Commission in the operative part of the Decision, as the Claimants base their claim for damages due to unlawful act on that Decision.“[3];
• rejected the truck manufacturers’ defence that the collusive relationship of the truck manufacturers essentially only consisted of incidentally exchanging innocuous information about the increase of gross list prices and net prices, but that, besides that, there was no question of making agreements on this subject or implementing such agreements[4];
• rejected the truck manufacturers’ decision that leased trucks were excluded from the Commission’s decision[5];
• ruled that it follows from the expert opinion of Prof. J.E. Harrington Jr. and Prof. M.P. Schinkel, which was entered into evidence by the claimants, that artificial gross list price increases led to a net cartel surcharge on the net final prices paid by customers and that the report is conclusive and convincing;[6]
• thus rejecting the truck manufacturers’ defence that it is ruled out that the infringement established by the Commission resulted or could have resulted in damage to the customers. The District Court held that “this does not diminish the fact that it will still have to be assessed per Claimant whether the threshold for referral to the follow-up proceedings for the determination of damages has been met“[7]. For this, the possibility of damage must be made plausible.

In addition, the District Court referred the cases to a case management hearing of 27 May 2021, at which time the District Court will determine the next steps in this first wave of cases.

[1] Amsterdam District Court 12 May 2021, ECLI:NL:RBAMS:2021:2391.

[2] CJEU 6 November 2012, C-199/11 ECLI:EU:C:2012:684.

[3] Amsterdam District Court 12 May 2021, ECLI:NL:RBAMS:2021:2391, para. 3.13

[4] Paras. 3.19, 3.20

[5] Para. 3.28.

[6] Paras. 3.62, 3.63

[7] Paras. 3.68, 3.69

In October 2020, the Regional Court of Hanover decided to ask the European Court of Justice for guidance on the scope of the decision of the European Commission regarding the truck cartel. ^[1]Landgericht Hanover 19 October 2020, 13 O 24/19, ECLI:DE:LGHANNO:2020:1019.13O24.19.00. The Regional Court of Hanover is requesting clarification on the scope of vehicles (“products”) covered by the decision and on whether these also include specific types of vehicles, such as rubbish trucks and fire engines. The answer to that question will enable the court to determine the extent to which the European Commission’s decision is binding. The decision to refer was published on 14 October 2020 and stems from a damages lawsuit brought before the Regional Court of Hanover by a German municipality. According to the decision to refer, the literal text of the European Commission’s decision is unclear, leaving room for different interpretations. The court also refers to the content of an information request directed to the truck manufacturers by the European Commission in 2015, which seems to exclude information on “special vehicles”. According to the Regional Court of Hanover, the questions need to be clearly resolved at this stage as the answers will determine the success or failure of the case presently before the court and will also be important in future proceedings.

On 24, 25 and 26 November 2020, the District Court held a (unique) three-day hearing in a case between various claims vehicles on the one hand and truck manufacturers DAF, MAN, Iveco, Volvo-Renault, Daimler and Scania on the other. The District Court dealt with three subjects, one per day: the scope of the European Commission’s decision, the trucks manufacturers’ defence to the effect that no damage could have been suffered, and the claim for the surrender of documents. In addition, discussion took place on the value that the District Court is entitled to attach to procedural documents and judgments in other (foreign) proceedings. The claimants relied, for instance, on a procedural document from Ryder, a claimant in proceedings in the UK, in which information from the European Commission’s file had been incorporated. The claimants, also relied on a decision by the UK Competition Appeal Tribunal in which the facts laid down in the decision had been adopted despite objections from the truck manufacturers. On 15 May 2021, the District Court rendered judgment on these subjects. We will discuss them in Q(2021-2).

Mlex reported ^[1]Mlex, LG Display settles with Iiyama over LCD cartel claim, 30 April 2020. on 20 April 2020 that LG Display had declared that it settled an antitrust claim in 2019 with the Japanese screen maker Iiyama in the aftermath of the liquid-crystal displays cartel. In 2010, the European Commission imposed a fine of EUR 649 million on LG Display, AU Optronics, Chimei Innolux, and others for having engaged in LCD display price-fixing from 2001 to 2006.

According to Mlex, on 5 May 2020, Daimler A.G. argued before the UK High Court in London that Wallenius Wilhelmsen’s data on the operation of the maritime car carriers cartel amounted to a “smoking gun”.^[2]Mlex, Wallenius Wilhelmsen data provides ‘smoking gun’ in car-shipper operations, Daimler tells UK judge In those proceedings,^[3]The case is CL-2018-000572 Daimler AG v MOL (Europe Africa) Ltd and others. Daimler is claiming damages from various shipping companies for their role in the cartel^[4]Commission Decision of 21 February 2018, Case AT.40009 — Maritime Car Carriers, 2018/C 314/09. that we wrote about earlier in Q(2020-1). In its decision of 21 February 2018, the European Commission fined the shipping companies Mitsui O.S.K. Lines, Ltd, MOL (Europe Africa) Ltd, Nissan Motor Car Carrier Co., Ltd, Kawasaki Kisen Kaisha, Ltd, Nippon Yusen Kabushiki Kaisha and various companies affiliated with Wallenius Wilhelmsen Logistics AS, including EUKOR Car Carriers, inc. for € 395 million for their role in the cartel. The maritime car carriers are also under fire from UK car manufacturers in other procedures. For example, Jaguar Land Rover7 and Volvo8 have initiated separate proceedings against the members of the cartel pursuant to the European Commission’s decision.

On 19 June 2020, in the proceedings between Wolseley UK Limited and others v. Fiat Chrysler Automobiles N.V., CNH Industrial N.V., DAF Trucks N.V. and Daimler A.G.9 in the aftermath of the truck cartel, the Competition Appeal Tribunal ordered Daimler A.G. to provide “explanatory guidance” about the Daimler database it had provided to Wolseley in the context of disclosure. This explanatory guidance is furthermore meant to consist of Daimler releasing additional information to make it easier to understand the Daimler database, including the guidance that Daimler has already had to provide to claimants in other truck cartel proceedings.