On 11 November 2021, the Court of Justice ruled in the air cargo case between the Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands B.V. v. British Airways, KLM, Lufthansa and a group of other airlines.[1] It answered the questions referred to it for a preliminary ruling by the District Court of Amsterdam, the Netherlands, as to whether national courts could also rule on claims relating to flights dating from before 1 May 2004 between the EU and outside countries; flights dating from before 19 May 2005 between Iceland, Lichtenstein, Norway and outside countries and flights dating from before 1 June 2002 between the EU and Switzerland. The Court of Justice answered in the affirmative. National courts may also rule on older claims.

[1] CJEU 11 November 2021, case C-819/19 (Stichting Cartel Compensation and Equilib/KLM and others).

On 28 October 2021, Advocate General Rantos delivered an opinion regarding the same truck cartel.[1] In a case between a Spanish company referred to by the letters RM v. Volvo and DAF Trucks, the Court of Appeal of Léon, Spain had asked the Court of Justice for a ruling on the temporal scope of the Antitrust Damages Directive.[2] Relevant in that context is that the Antitrust Damages Directive distinguishes between substantive provisions that have not been declared retroactively applicable and procedural provisions that are applicable in cases that predate the Directive’s entry into force. Two things were at issue.

In Spain, there is a limitation period of one year for non-contractual liability, whereas Article 10(3) of the 2014 European Antitrust Damages Directive specifies a five-year limitation period for bringing actions for cartel damages. The question is which limitation period applies here. The Advocate General concluded that the five-year limitation period is a substantive provision and does not therefore apply to cases where the facts and fines predate the implementation of the Directive.

Another point of dispute was whether the presumption that a cartel leads to damage in Article 17(2) of the Antitrust Damages Directive applies here. The Advocate General held that this was a procedural provision and that it is therefore also applicable in cases where the facts predate the Directive.

[1] Opinion of Advocate General M. Athanasios Rantos, case C-267/20, 28 October 2021. See also Court of Justice of the European Union Press Release No 193/21: “Truck cartel in Spain: Advocate General Rantos clarifies the temporal scope of the directive on the compensation of victims of anti-competitive practices”, 28 October 2021.

[2] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

On 14 April 2021, the Court of Appeal in London upheld a High Court decision of February 2020 to the effect that computer company OT Computers was not time-barred from suing chip manufacturers Infineon Technologies and Micron Technology for their role in the memory chips cartel for which the European Commission had fined the companies back in 2010.[1] The chip makers attempted to get the ruling overturned on appeal, arguing that the limitation periods for the claims had passed because the impact of the cartel was investigated by the US Department of Justice years prior to the EU probe into the chip makers’ conduct. This argument did not succeed, as the judge said the EU decision involved information that was essential in order to bring a claim, and the claimants therefore had to wait for the decision. As the limitation arguments were a preliminary issue which has now been decided in favour of OT Computers, the parties can now press ahead with full legal proceedings.

[1] Court of Appeal London 14 April 2021, [2021] EWCA Civ 501, Case No. A4/2020/0658, A4/2020/0672, A4/2020/0675 & A4/2020/0674.

On 6 May 2021, Advocate General Michal Bobek issued an Opinion in one of the cases concerning the air cargo cartel.[1] The Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands instituted proceedings against British Airways, KLM and other airlines after the European Commission established in 2010 that the airlines had made prohibited price agreements with regard to cargo shipments prices. The AG’s Opinion pertained in particular to the question of whether damage could also be claimed for the period prior to 2004, when important competition law came into force. According to the airlines, Articles 104 and 105 TFEU would result in the national courts not having jurisdiction to rule on antitrust damages cases from that period. Advocate General Bobek did not concur with this and thus concluded that national courts could also rule on antitrust damages claims dating from before 2004.

[1]              Advocate General M. Bobek, 6 May 2021, case C-819/19 (Stichting Cartel Compensation and Equilip Netherlands/KLM 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.

Pursuant to Article 3:305a DCC, Stichting Gin Schade filed claims against the backer of failed investments in Dutch hardwood. Like the District Court, the Amsterdam Court of Appeal ruled on 16 March 2021 that the foundation’s claims are inadmissible because it did not meet the requirements of Article 3:305a DCC at the time the proceedings were instituted.[1] In doing so, the Court of Appeal attached importance to the fact that the requirements of the Claim Code 2011 had not been met, nor, for that matter, the new requirements of the Claim Code 2019. An amendment to its articles of association in 2018 was of no avail to the claim foundation, because that would entail that it was acting in a different capacity. The claims instituted on the basis of a mandate were also disregarded, because these had become time-barred, as the letter of interruption pertained explicitly to collective claims instituted on the basis of Article 3:305a DCC.

[1] Amsterdam Court of Appeal 16 March 2021, ECLI:NL:GHAMS:2021:747.

Mobile phone SIM card maker Gemalto is trying to claim damages from Infineon Technologies and Renesas Electronics for their participation in the smartcard chip cartel, and for which they were fined by the EC in 2014. On 31 March, a judge of the High Court ordered that the defence of the cartel members that the claim is time-barred should be decided on first as that would save time and costs. The defendants have argued that the limitation period started to run as of the second request for information from the EC to the cartel members in 2012. The names of the (suspected) cartel members were included in the request and that should have been a trigger for Gemalto to investigate whether it had a cause of action and start litigation, according to the defendants. Gemalto stated in its defence that at that stage, it could only be aware of the fact that these parties were suspected of forming a cartel and an investigation was ongoing, not that a cartel existed. The case will proceed only if and after it will be proven that the claim is not time-barred.[1]

[1] The case reference is CP-2019-000027 Gemalto NV and others v. Infineon Technologies AG and others.