On 27 July 2021, the ‘s-Hertogenbosch Court of Appeal ruled in the proceedings concerning the claimant Deutsche Bahn’s prestressing steel cartel against prestressing steel manufacturers Nedri Spanstaal B.V., Arcelormittal España SA, Drahtwerk Köln GmbH and Trafilati Acciai S.P.A. and Fapricela-Indústria de Trefilaria S.A. and a few group companies.[1] These proceedings included Deutsche Bahn’s obligation to furnish facts. The Court of Appeal ruled that Deutsche Bahn must present sufficient factual elements and submit specific information to that end in order to make it plausible that it may have suffered damage. This concerns information that specifies which, when, from whom and at what price cartel products were purchased. According to the Court of Appeal, the submission of a few examples is insufficient.

This obligation to furnish facts does not only entail the identity of the claimants – which means that a claims foundation must comply with this obligation to furnish facts for each individual underlying party – it must also give insight into the original transactions (based on contracts, invoices, packing slips, records, annual report and accounts, etc.). Although the claim should normally be specified at the initial stage of the proceedings, the Court of Appeal offered Deutsche Bahn the opportunity to provide the required explanation.

[1] ‘s-Hertogenbosch Court of Appeal 27 July 2021, ECLI:NL:GHSHE:2021:2341.

On 23 June 2021, the District Court of Rotterdam ruled in the case of claim vehicle Stichting Elevator Cartel Claim against the Dutch company Kone B.V. and the Finnish company Kone OYJ.[1] In this lift cartel damage case, the District Court had to assess whether the claims foundation to which some 40 public housing associations have assigned their claims had complied with its obligation to furnish facts regarding damage and causality. In doing so, the District Court ruled that in the case of specific indications that an agreement had been concluded between a public housing association and one or more cartel participants in the infringement period, it is plausible that the price paid was influenced by the lift cartel.

The District Court then assessed for each underlying party whether the foundation had made sufficient assertions to make the possibility of damage plausible. In this respect, it must always be proven that the party seeking damages contracted with or made payments to a cartel participant during the infringement period.

The District Court also held with regard to the passing-on defence that, in view of the point system to determine a reasonable (maximum) rent, it is not plausible that the injured parties passed on the additional price for the entire amount. In the end, the District Court concluded that all or part of the alleged damage had been made plausible for all underlying parties and that the case would therefore be referred (for that part) to the follow-up proceedings for the determination of damages.

[1] Rotterdam District Court 23 June 2021, CLI:NL:RBROT:2021:6636.

On 15 April 2021, European Advocate General Giovanni Pitruzella issued an Opinion in one of the many truck cases,[1] specifically that of the Spanish company Sumal S.L. v. Mercedes Benz Trucks España S.L., a Daimler subsidiary. Although the Spanish truck company was not mentioned in the European Commission’s decision of 19 July 2016 in which a fine was imposed on Daimler, Suma S.L. took the view that liability towards it could also be imputed because Mercedes Benz Trucks España S.L. formed a single economic unit with the parent company.[2] It is a generally accepted doctrine that a parent company can be liable for anti-competitive conduct by a subsidiary if they together form an ‘economic unit’. This is termed ‘bottom-up liability’. Advocate General Pitruzzella concluded that, if such an economic unit exists and the subsidiary contributed substantially to the infringement, ‘top-down liability’ is also possible.

[1]              Advocate General G. Pitruzella, 15 April 2021, case C-882/19.

[2]              See here for all European Commission documents in the case AT.39824 Trucks v. Daimler et al..

The railway construction cartel also brought about three judgments of the German Federal Court of Justice (Bundesgerichtshof) of 13 April 2021. These concerned antitrust damages cases initiated by two (anonymous) regional transport operators from Dortmund, Duisburg and Cologne against (anonymous) railway construction companies.[1] The lower courts ruled in both cases that the price cartel created a suspicion of damage, that the cartelists had not sufficiently refuted that suspicion and therefore that they must compensate the damage. The Federal Court of Justice held that this was an interpretation of the burden of proof rule that is not in line with previous case law from the highest court. The rule that damage is suspected in a cartel case is a rule based on experience, but it does not automatically mean that the burden of proof is reversed.  The Federal Court of Justice found: “Taking such a principle of experience into account does not, however, lead to reversal of the burden of proof. The principle of experience in question should rather be taken into account in the context of the general assessment of all circumstances that argue in favour of or against the occurrence of the damage“. Consequently, the rule of suspicion of damage may only alleviate the claimants’ obligation to provide substantiation, but cannot lead to a different division of the burden of proof. The Federal Court of Justice therefore referred the cases back to the relevant appellate courts, as the Federal Courts of Justice cannot rule on the facts and circumstances. These judgments were only published on 19 July 2021 and 27 August 2021[2] and may have consequences for all previous judgments rendered by lower courts in relation to the railway construction cartel.

[1] Federal Court of Justice 13 April 2021, case KZR 98/18 and Federal Court of Justice 13 April 2021, case KZR 95/18 and Federal Court of Justice 13 April 2021, case KZR 40/19.

[2] “German transport operators’ train-tracks cartel damages suits sent back for review”, MLex 19 July 2021; “Cologne mass-transit operator’s train-tracks cartel damage lawsuit referred back to lower court”, MLex 27 August 2021.

On 3 February 2021, Dortmund Regional Court (Landgericht) ruled that a transport association from North Rhine-Westphalia (its name has been anonymised) is entitled to compensation for damage caused by a railway construction cartel.[1] This association had acquired companies that paid too much for railway superstructure materials as a result of a cartel. On 18 July 2013, the German competition authority, the Bundeskartellamt, imposed a fine of EUR 97.64 million on a large number of producers of railway building materials (also anonymised). According to the penalty decision, the cartelists made price, quota and customer protection agreements on the private market in Germany from 2001 to 2011. The Regional Court found that it may be suspected that all tenders for the rail materials in question fell under the cartel during that period. With regard to the damage, Dortmund Regional Court referred to a general study by Oxera from 2009[2] which shows that 93% of price cartel cases results in a price increase. Given the duration of the cartel (10 years) and the size of the cartel (90% of the market participated), damage could be suspected in this case as well. Because the claimants had taken over the damage-suffering companies, they could lodge the claims for damages. The cartelists provided insufficient proof to the contrary and must therefore compensate the damage. The court assumed a prohibited price increase of 10%. Other claims were rejected because although another company had purchased material from the defendants, this company had not indicated why these transactions fell under the cartel.

[1]              Dortmund Regional Court, 3 February 2021, ECLI:NLDE:LGDO:2021:0203.8O116.14KART.00.

[2]              Oxera, 2009: Quantifying Antitrust Damages: Towards Non-Binding Guidance for Courts.

Q4 saw the publication of a judgment from 23 September 2020 in which the Bundesgerichtshof ruled in favour of members of the German train tracks cartel. ^[1]BGH 23 September 2020, KZR 4/19 – OLG Düsseldorf LG Dortmund. The case was between unidentified cartel members and the transport operator for the city of Essen. The highest court referred the case back to appeal because it found that the appeal court had erred in applying the burden of proof, specifically by reversing the burden of proof when establishing whether the claimant had suffered damage. The judges held that there is a (rebuttable) presumption that prices affected by a cartel will be higher than those under normal market conditions, but that the burden of proof when assessing damage should not be reversed. This presumption is only one of the factors to be considered by the court.

This case is important because the highest court referred the case back, supplying detailed guidance on how to quantify damages, as well as helpful instructions and clarification on how to assess the defence that damage was passed on. The judges held that:

• A cartel member that wants to invoke the passing-on defence must present tangible evidence to support the contention that the damage was passed on, whereby the level of detail required depends on the specific circumstances of the case, in particular the complexity of the economic context.
• If – particularly in cases of scattered damages – there are a relatively small number of damages claims, which are by indirect cartel victims and difficult to quantify, the court should not accept the passing-on defence because that would involve the risk of the defendants being awarded unfair relief.

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.