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.

The Spanish District Court referred questions to the CJEU, which the CJEU published on 20 September 2021. The questions pertain to the question of whether the rules for allocating the costs of the proceedings can constitute an infringement of the right of cartel victims to compensation. In addition, the Spanish District Court referred questions about when courts may estimate the amount of the damage, based on EU rules.[1]

[1] Official Journal of the European Union 20 September 2021, Request for a preliminary ruling from the Juzgado de lo Mercantil n. 3 de Valencia (Spain) lodged on 19 May 2021 — Tráficos Manuel Ferrer, S.L. and Other v Daimler AG, Case C-312/21.

On 30 September 2021, the Landgericht Munich I rendered two decisions regarding the truck cartel, as follows from an article in the Süddeutsche Zeitung of the same day.[1] In both proceedings, the same two experts were instructed to investigate whether the claims for damages totalling nearly EUR 450 million were justified. The judgments are (as yet) unpublished.

In the case of DB Competition Claims GmbH, a subsidiary of the Deutsche Bahn group, against the six truck manufacturers MAN, Daimler, Iveco, Volvo/Renault, DAF and Iveco, Deutsche Bahn sought compensation of EUR 395 million for cartel damage in respect of 39,000 trucks in 18 federal states in the period 1997 to 2019. In another case, 13 German federal states are claiming EUR 49 million due to cartel damage for purchased trucks. In Munich, more than 100 civil lawsuits are said to be pending against the truck manufacturers, involving 250,000 trucks.

Deutsche Bahn responded to the news. According to a press release, the carrier hopes that the truck manufacturers will take responsibility and reach a settlement.[2]

[1]              “Lkw-Kartellprozess: Gutachter sollen Schadenshöhe klären”, Süddeutsche Zeitung, 30 September 2021.

[2]              “Lkw-Kartell: DB erwartet zügige Schadensregulierung durch Lkw-Hersteller”, press release on the website of Deutsche Bahn, 30 September 2021.

On 13 April 2021, the German Bundesgerichtshof set aside an earlier judgment of the Schleswig-Holstein Court of Appeal in the German antitrust case against Daimler and ruled that the case be heard again.[1] This judgment stated that Daimler was liable for paying damages to an anonymised freight forwarder, that had purchased nine vehicles from Daimler and DAF.

The judgment of the German Bundesgerichtshof shows that the Schleswig-Holstein Court of Appeal made a legal error in assessing the circumstances in order to determine whether damage had occurred. The Schleswig-Holstein Court of Appeal had wrongly failed to take into account the advice from the private expert report submitted by Daimler and DAF, which contained a comparative market analysis that concluded that there had been no cartel-related price increases. According to the Bundesgerichtshof, the argument that the claimant was able to pass on the increase of its purchase costs was also wrongly rejected.

[1] Bundesgerichtshof 13 April 2021, ECLI:DE:BGH:2021:130421UKZR19.20.0 (Klägerin v. Daimler AG).

On 14 July 2021, the Amsterdam District Court rendered judgment in Car Claim’s claim against Volkswagen et al., known popularly as ‘Dieselgate’.[1] In this class action, Car Claim represents the interests of car owners of the brands Volkswagen, Audi, Skoda and Seat that were put on the market between 2008 and September 2015 and which were fitted with emissions-cheating software.

Volkswagen et al. acknowledge that the original software featured various modes that are prohibited under the Emission Regulation. The District Court went on to answer the question of whether this also means that Volkswagen et al. acted unlawfully towards the car owners and whether the violated standard serves to protect the financial interests of the Car Owners.

The District Court ruled that the car manufacturers did indeed act unlawfully because they deliberately misled the regulator and the buyers of the cars by fitting the cars with cheating software, which is contrary to what is generally accepted according to unwritten law. The District Court issued a declaratory judgment stating that the car dealers sold cars that did not meet the buyers’ reasonable expectations as a result of the cheating software; the so-called non-conformity. After all, the buyer may expect the car to comply with the applicable regulations upon delivery. For that reason alone, a car that does not comply with said regulations is worth less than the purchase price, which is why the buyers are entitled to a price reduction from the car dealers. The importance of a simple and uniform settlement of damage, as intended by a class action, requires the District Court to determine what price reduction can be claimed. Because the defect is the same for each case, that amount may be the same for each car owner. The District Court set the price reduction for consumers who purchased a car from the car dealers involved in these proceedings at €3,000 for a new car and €1,500 for a second-hand car. Volkswagen et al. lodged an appeal against this District Court judgment.

[1] Amsterdam District Court 14 July 2021, ECLI:NL:RBAMS:2021:3617.

On 13 April 2021, the Federal Court of Justice rendered another antitrust damages judgment, this time regarding the truck cartel.[1] Daimler initiated the appeal in cassation after it had lost before Schleswig-Holstein Higher Regional Court in a case against an (anonymised) freight forwarder that claimed damages from the manufacturer for nine trucks it had purchased from Daimler and DAF. Daimler, along with DAF, Volvo-Renault, MAN and Iveco, was fined in 2016 for infringing agreements on prices and introduction of emission standards in the period 1997-2011. In 2017, Scania was also fined for these infringements. The lower courts had therefore ruled that the infringing acts caused damage to the anonymous claimant and had ordered Daimler to compensate it. In April 2021, the Federal Court of Justice ruled that Schleswig-Holstein Higher Regional Court had correctly held that the cartel was likely to have caused damage due to a price increase, but the Higher Regional Court had failed to take sufficient account of the fact that the price increases could (partly) be passed on to customers of the injured party. Moreover, Daimler and DAF had submitted their own economic investigations that concluded that no price increases had been observed. According to the Federal Court of Justice, those investigations were insufficiently taken into account in the assessment. The Federal Court of Justice referred the case back to the Schleswig-Holstein Higher Regional Court for further assessment.

[1] Federal Court of Justice 13 April 2021, case KZR 19/20.

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.

On 30 September 2020, the Regional Court of Dortmund awarded damages in a claim concerning the train tracks cartel. ^[1]Landgericht Dortmund 30 September 2020, 8 O 115/14 (Kart) This decision is interesting because the Regional Court quantified the (cartel) damage on the basis of its own findings. The court did so because it considered the costs of an expert to be disproportionate in relation to the (suspected) damage in question. The defendants had submitted expert advice themselves, but the Regional Court dismissed it as unreliable. In addition, according to the Regional Court, the conventional method of quantifying (cartel) damage did not apply here due to the special nature of the case. There was, for example, no market that could serve as a comparative market. Consequently, the Regional Court arrived at its own estimate. The price increase due to the cartel was estimated at ‘at least 15%’. The Regional Court based its quantification on factors that also apply in the determination of a cartel fine, such as the cartel’s duration, scope and degree of organisation. The estimated percentage was also felt to be of the same order of magnitude as the percentages to be found in well-known studies on average cartel-related price increases and other decisions of European District Courts. The amount of damages ultimately awarded was approximately € 62,000.