In a 27 September 2021 decision published in Q4 in a follow-on action in the context of the truck cartel, the Dortmund District Court assumed that the cartel caused harm. The District Court held that the European Commission’s fining decision contains significant indications demonstrative of the cartel’s price effect. The District Court referred to the cartel’s length, broad market coverage (in this case, more than 90% in the EU and nearly 100% of the German market), lack of product substitutability and degree of organisation, among other things. Referring to established economic theories and empirical research, the District Court held that these factors are core indicators generally indicative of a cartel-related price increase (the empirical principle).

The District Court accorded particular weight to the empirical principle due to the contradictory nature of the expert evidence that the parties had submitted. Nor do the submitted expert statements cancel each other out, according to the District Court. The District Court nevertheless held that the indications led, in any event, to the assumption of a certain extent of damage.

The question of whether it is possible to determine the level of damages and/or conduct an expert investigation to that end will be dealt with at a subsequent stage before a decision is rendered in the present case.

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.

On 24, 25 and 26 November 2020, the District Court held a (unique) three-day hearing in a case between various claims vehicles on the one hand and truck manufacturers DAF, MAN, Iveco, Volvo-Renault, Daimler and Scania on the other. The District Court dealt with three subjects, one per day: the scope of the European Commission’s decision, the trucks manufacturers’ defence to the effect that no damage could have been suffered, and the claim for the surrender of documents. In addition, discussion took place on the value that the District Court is entitled to attach to procedural documents and judgments in other (foreign) proceedings. The claimants relied, for instance, on a procedural document from Ryder, a claimant in proceedings in the UK, in which information from the European Commission’s file had been incorporated. The claimants, also relied on a decision by the UK Competition Appeal Tribunal in which the facts laid down in the decision had been adopted despite objections from the truck manufacturers. On 15 May 2021, the District Court rendered judgment on these subjects. We will discuss them in Q(2021-2).