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..

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.

On 23 June 2021, in an action for damages with regard to the lift cartel, Rotterdam District Court ruled that the possibility of damage is plausible for 41 housing corporations represented by the claimant Stichting De Glazen Lift (DGL).[1] In its interlocutory judgment of 29 May 2019, the District Court gave DGL the opportunity to enter documents into evidence showing that during the period of the cartel each member of the foundation had purchased at least one lift from the cartelists or had had at least one lift maintained or modernised by the cartelists.[2] In this judgment, the District Court confirms that evidence of a single transaction is sufficient to (be able to) make the possibility of damage plausible and to achieve the threshold for referral to the determination of damages, at which stage the scope of the damage can be addressed.[3] DGL has sufficiently done so by submitting the additional documents; the District Court rejected the cartelists’ defences against these.

The District Court then discussed the pass-on defence put forward by the cartelists, with regard to which the District Court had ruled in the interlocutory judgment that it would be up to them to substantiate this defence and, if necessary, prove it, for which purpose DGL should, however, offer sufficient starting points by submitting documents unavailable to Kone and Otis.[4] Kone and Otis argued that DGL did so insufficiently, that they are therefore unable to substantiate the passing on, and that DGL’s claims should therefore be denied. The District Court agreed with Kone and Otis that DGL submitted a very limited number of documents, but the District Court nevertheless did not proceed to deny the claims because, based on the documents, the District Court in any event deemed it plausible that the participants did not or could not pass on all additional costs, so that it was nevertheless plausible that the members suffered damage.[5]

The District Court issued a declaratory judgment to the effect that Kone and Otis are jointly and severally liable for the damage suffered by the participants and refers the case to follow-up proceedings for the determination of damages.

[1] Rotterdam District Court 23 June 2021, ECLI:NL:RBROT:2021:6635.

[2] Para. 2.1.

[3] Para. 2.6.

[4] Paras. 2.1, 2.11

[5] Para. 2.13.

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

On 23 September 2020, the highest court of Germany, the Bündesgerichtshof (“BGH“), annulled two interim judgments stating that the reasons given did not justify the finding that the cartel members concerned were in principle liable for the damages suffered. The annulment decisions were published in Q1 2021 and concern interim judgments of the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf.

1. The interim judgement of the Higher Regional Court of Stuttgart was rendered in a damages lawsuit brought by two construction companies against truck manufacturer Daimler for its participation in the truck cartel.[1] In this case, the Higher Regional Court had ruled that Daimler was in principle liable for the damages claimed by the claimants. The BGH considered that although the court was right in presuming that a cartel leads to an increase of the market prices of the purchased goods or services and therefore to damage, such presumption must be made on a case-by-case basis and taking into account the specific circumstances of the cartel. According to the BGH, the Higher Regional Court had not done so in full. The BGH was therefore concerned that the Higher Regional Court had reversed the burden of proof and had required the cartel member to proof that no damage had been suffered – thus placing an excessive burden of proof on the defendants.
2. The interim judgment of the Higher Regional Court of Düsseldorf was rendered in a damages lawsuit brought against Shreck-Mieves, Balfour Beatty Rail and ThyssenKrupp GfT Gleistechnik because of their participation in the train-tracks cartel.[2] It found that it could be assumed that the claimants had suffered damage. The BGH annulled this decision for similar reasons as it did the aforementioned decision of the Higher Regional Court of Stuttgart. The BGH found also in this case that the Higher Regional Court had not considered all specific circumstances of the case and that there was a risk that the court had reversed the burden of proof. It made it clear that such reversal would be an error in law.

The two cases have been referred back to the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf, respectively, to be examined again.

[1] OLG Stuttgart Decision of 4 April 2019, 2 U 101/18.

[2] OLG Düsseldorf Decision of 23 January 2019, VI-U (Kart) 17/17.

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.