On 7 February 2023, the Competition Appeal Tribunal (CAT) rendered a judgment in the cartel damages cases started by Royal Mail Group Ltd and BT Group PLC against DAF Trucks Limited and other truck manufacturers following the decision of the Commission concerning the trucks cartel.[1] This is the first final judgment in a damages proceeding relating to the trucks cartel in which the CAT awards a specific percentage and an amount of damages. The claimants argued on the basis of economic theory that the overcharge was an estimated 10%, the defendants argued that there was no overcharge at all.  The CAT concluded that the overcharge for which DAF is liable is assessed at 5% for both claimants on their value of commerce over the whole of the relevant period, being damages of approximately EUR 30 million. DAF’s mitigation defences on passing on the damages, all failed. BT Group is also entitled to simple interest on its damages award of the base rate plus 2%. On 16 May 2023 and in a separate decision, the CAT allowed DAF to  appeal  this decision.[2]

[1] CAT 7 February 2023, [2023] CAT 6 (Royal Mail and BT Group / DAF et al).

[2] CAT 16 May 2023, [2023] CAT 31 (Royal Mail and BT Group / DAF et al).

On 23 June, the Mannheim Regional Court ruled that Nestlé Deutschland AG and Molkerei Alois Müller GmbH & Co KG are entitled to in total almost € 14 million from sugar producers Südzucker, Nordzucker and Pfeifer & Langen for damages following cartel agreements on sugar prices. These are two pilot proceedings. According to the court, around 40 damages proceedings started by various food and beverage manufacturers following the cartel are filed with the Mannheim Regional Court. In total several hundred million euros are being claimed.[1] Normally this kind of ruling would lead to a better chance for claimants to reach a favourable settlement with defendants.

[1] Source: https://www.marketscreener.com/quote/stock/SUDZUCKER-AG-436654/news/Sugar-manufacturers-ordered-to-pay-millions-in-damages-44178194/.

Abstract damages

On 16 February, the Court of Justice ruled in the trucks case at the request of the Spanish court in the case of Tráficos Manuel Ferrer SL and Mr D. Ignacio v Daimler AG on the abstract damages.[1]

Pursuant to Article 17(2) of the Antitrust Damages Directive, a national court can itself estimate the damage resulting from a cartel if it is practically impossible or excessively difficult to accurately estimate the damage suffered on the basis of the available evidence.

The Court of Justice has now ruled that a national court may not award such abstract damages if the impossibility to specifically determine the damages is the result of the applicant’s inaction. The Court found that the Antitrust Damages Directive provides for instruments to eliminate the inequality in the provision of information between a cartelist and a victim. In particular, the Court mentioned the possibility of requesting disclosure of evidence on the basis of Article 5 of the Antitrust Damages Directive. Only if the victim has sufficiently availed itself of these possibilities can the court proceed to an abstract estimate of the damage. The national court must determine whether the claimant has availed itself of that possibility sufficiently.

[1] Court of Justice, 16 February 2023, ECLI:EU:C:2023:99 (Tráficos manuel Ferrer SL/Daimler).

On 22 June 2022, the Court of Justice ruled in another truck case, this time initiated by the Spanish party RM versus AB Volvo and DAF Trucks NV in response to questions for a preliminary ruling from the Spanish court in Léon.[1] Among other things, the question was whether the rebuttable presumption of damage from the Antitrust Damages Directive can apply in cases under Spanish law. The Court of Justice ruled that this was not the case, as the Spanish government did not transpose the Antitrust Damages Directive into Spanish law in good time. Because the cartel already ended before the implementation deadline, application of the rebuttable presumption of damage is prohibited with retroactive effect.

[1] CJEU 22 June, case C-267/20 (AB Volvo, DAF Trucks NV/RM).

On 13 May 2022, the CAT ruled on a request for appeal by Mastercard Inc in a class action case initiated by Walter Hugh Merricks CBE in connection with the MIFs cartel established by the European Commission in 2007.[1] Merricks had summoned Mastercard on 6 September 2016 on behalf of all of Mastercard’s surviving aggrieved parties, an opt-out case. MasterCard defended itself by asserting that the class action could not or could no longer pertain to people who died after that date. The CAT had rejected this defence in March 2022 and now decided on 16 May 2022 that no appeal could be lodged against that ruling. However, Mastercard could still lodge an objection directly with the appeal court because of the legal issue at hand. Mlex reported on 18 May 2022 that Mastercard had announced that it would lodge an objection.[2]

[1] Competition Appeal Tribunal 13 May 2022, case 1266/7/7/16 (Merricks/Mastercard).

[2] MLex, ‘Mastercard to fight on at appeal court over scope of UK class action’, 18 May 2022.

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.