The judgment of 3 March 2021 in the case of Stichting Diesel Emissions Justice Volkswagen has shown that the possibility of joinder under the WAMCA regime is likely ruled out.

The recently introduced WAMCA regime also introduced Title 14A (Articles 1018b through 1018m) of the Dutch Code of Civil Procedure. This title pertains to the procedural aspects of the 305a procedure. It therefore applies to proceedings that were instituted on or after 1 January 2020 and in addition relate to an event that occurred on or after 15 November 2016. Article 217 of the Dutch Code of Civil Procedure provides that every party having an interest in proceedings pending between other parties may claim to join those proceedings or to intervene in the proceedings.

Car Claim argued that Title 114A does not exclude the application of Article 217. The District Court finds that this assertion in itself is correct, but that there is nevertheless no room for joinder under the WAMCA regime. In this respect, it finds that, pursuant to Article 1018d, Car Claim could have lodged a collective claim for the same event within three months after the issue of the summons by SDEJ. In that case, the District Court would have designated one of them as the exclusive representative. The non-designated claimant could have stayed as a party and the District Court would have decided whether this claimant would also have been allowed to perform procedural acts. The WAMCA – the District Court argues – therefore has a closed system for claimants in two respects. This design of this system was well thought through by the legislature. As a result, Car Claim cannot be assigned a place as a claimant in the proceedings in circumvention of the admissibility requirements and the WAMCA designation procedure. That would contravene the intention of the legislature.

The fact that it is not certain that a final judgment will have been rendered in the Car Claim proceedings when the possibility of opt-out is offered in the SDEJ proceedings does not, in the District Court’s opinion, constitute a reason to decide otherwise, and neither does the circumstance that Car Claim’s claim in the Car Claim proceedings has been declared admissible, or that Car Claim’s good intentions are evident.

As the applicable law for the underlying action has not yet been determined, the assessment was also made according to the law applicable until 1 January. For Car Claim to be able to join the proceedings under this law, it is necessary for the SDEJ proceedings to turn out unfavourably to SDEJ and for that to be disadvantageous to Car Claim. According to the District Court, it is not sufficient that there is a risk of conflicting decisions.

Finally, the District Court found that the interests represented by Car Claim and SDEJ overlap. When a judgment is rendered in respect of SDEJ, part of the group represented by Car Claim will also be bound by it. The District Court held that Car Claim therefore wishes to stay this judgment with the intention of preventing any substantive ruling from being given in the main action for the time being. SDEJ, however, did want a substantive assessment. Allowing joinder in this case would therefore be at odds with the essence of joinder; the joining party must support the position of the party it joins and not claim something else.

For all the aforementioned reasons, the District Court therefore rejected Car Claim’s claim for joinder.

The adoption of the Amendment of the member of the House of Representatives Van Gent resulted in the WAMCA not only applying to collective claims relating to events that occurred after 15 November 2016 (the date on which the initial bill of the WAMCA was presented to the House of Representatives), but also to events that occurred before that date, provided that they continued after that date.

In its summons in proceedings against Renault S.A.S., Stichting Emission Claim (the Foundation) asserted that the software updates that would remove the non-conformity of the vehicles equipped with fraudulent software took place after 15 November 2016. Furthermore, even after the updates, emissions from the engines did not remain below the limit under all circumstances. As a result, the Foundation argued, the obligation of the car manufacturers, importers and dealers to end the fraud in connection with the vehicles marketed in the Netherlands before 15 November 2016 continues to this day. With this summons, the Foundation is therefore seeking, briefly put, collective damages for the loss suffered by the injured parties of the diesel fraud committed by Renault and Bosch in the Netherlands and a number of declaratory judgments regarding the consequences of this diesel fraud under the WAMCA.

On 7 April 2021, Stichting Brein summoned Ziggo BV, XS4ALL Internet BV and KPN B.V. (the “providers“) to appear in court. The case follows from the judgment in preliminary relief proceedings of Midden-Nederland District Court of 8 October 2020, which led to the extension of the blockade of The Pirate Bay to the (sub)domains of mirrors and proxies through which The Pirate Bay is available. Through this summons, the blockade imposed on mirrors and proxies is now also sought in the proceedings on the merits.[1]

The providers had to appear before Midden-Nederland District Court on 6 October 2021

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBMNE-dagvaarding-collectieve-vordering-stichting-brein-vs-Ziggo-XS4ALL-InternetBV-KPN.pdf.

The Stichting Onderzoek Marktinformatie (“SOMI“) summoned Tiktok Technology Limited (“TikTok“) to appear before Amsterdam District Court on 15 September 2021 for the large-scale infringement of the privacy and consumer rights of 1 million Dutch children who use TikTok.[1]

SOMI wants to put an end to the unlawful conduct of TikTok. SOMI is claiming compensation on behalf of all these children, inter alia on the basis of the GDPR. The claimed compensation amounts to approximately € 1.4 billion in total.

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBAMS-dagvaarding-collectieve-vordering-tiktok-technology-limited.pdf.

On 19 May 2021, The Hague District Court rendered an interlocutory judgment in the case of two individual claimants and the Dutch Lawyers Committee for Human Rights, Amnesty International and Controle Alt Delete (“CAD“) against the State of the Netherlands.[1] The underlying dispute concerns the Royal Netherlands Marechaussee, which, according to the claimants, uses ethnic profiling when drafting risk profiles for the purpose of border control. The claimants claim, inter alia, that the use of risk profiles including ethnicity infringes the non-discrimination principle.

This interlocutory judgment pertains only to the admissibility of the claims and the appointment of the exclusive representative.

CAD was declared not to have a cause of action, because it does not have legal personality. Article 3:305a of the Dutch Civil Code (“DCC“) requires a claim vehicle to be a foundation or association.

With regard to the right of action of the other two organisations, the District Court noted that the claims are not aimed at obtaining compensation. Therefore, the requirements of Article 3:305a(6) DCC have been met. The remaining requirements of Article 3:305a DCC have also been met. The claims, for example, have a sufficiently close connection with the jurisdiction of Dutch courts, because the actions take place on Dutch territory.

Regarding the appointment of an exclusive representative, the District Court deemed Amnesty International to be the most suitable claimant to act as exclusive representative and therefore appointed Amnesty International in that capacity (within the meaning of Article 1019e DCC).

Lastly, with regard to the two individual claimants’ cause of action, they argued, inter alia, that their individual interest lies in questioning whether a fundamental human right to which they are entitled is being respected by the State. Therefore, the District Court found that these claimants had a sufficiently specific individual interest and therefore had a cause of action.

Following this ruling, the parties had to appear in court on 15 June 2021 for a hearing on the merits of the case.

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBDHA-tussenvonnis-collectieve-vordering-de-Staat-der-Nederlanden-(Ministerie-van-Defensie-en-het-Ministerie-van-Justitie).pdf.

Clara Wichmann (a foundation) et al. held the State liable for not compensating women for costs of contraception. On 2 June 2021, The Hague District Court[1], in a judgment that pertained solely to the admissibility of the case, appointed Wichmann as the exclusive representative.[2] The District Court ruled that the requirements of Article 3:305 DCC have been met because the foundation pursues a collective interest (an equal society for, inter alia, men and women) and an idealistic purpose without a claim for damages (so that the admissibility requirements from Article 3:305(2) DCC need not be met). The District Court already announced that it would declare the individual claimants not to have a cause of action in the final judgment, because they had lodged their claims (only) to declare their support.

[1] Interlocutory judgment The Hague District Court 2 June 2021, case number / cause-list number: C/09/588600 /HAZA 20-181.

[2] Incidentally, the case was unsuccessful for Clara Wichmann et al., as evidenced by the judgment of The Hague District Court of 6 October 2021.

On 30 June 2021, Amsterdam District Court rendered an interlocutory judgment in the case between the foundation Data Privacy Stichting and Facebook.[1] The underlying dispute concerns the question of whether Facebook has violated the privacy of its users.

In this interlocutory judgment the District Court ruled on its jurisdiction, the admissibility of Data Privacy Stichting’s claim and the applicable law.

With regard to the jurisdiction of the District Court, the District Court assumed jurisdiction on various grounds. Firstly, Facebook has an establishment in the Netherlands (the “anchor defendant”) which performs relevant activities with regard to the revenue model (personalised advertisements) of Facebook. The claims against the various Facebook entities are therefore so closely connected that the District Court has jurisdiction to rule on all claims simultaneously (Article 8(1) Brussels I Regulation Recast). Secondly, the damage is suffered by the individuals represented by the foundation. This damage is suffered in the Netherlands. Based on “Erfolgsort”, the Dutch court therefore has jurisdiction to rule on this damage (Article 7(2) Brussels I Regulation Recast). Thirdly, the District Court ruled that it had jurisdiction based on the GDPR. Facebook has an establishment in the Netherlands and the individuals represented by the foundation reside in the Netherlands. Both facts are grounds for jurisdiction (Article 79 GDPR). Importantly, the District Court concluded that the rules on jurisdiction from the Brussels I Regulation Recast and the GDPR were not mutually exclusive.

Furthermore, regarding the admissibility of Data Privacy Stichting’s claim, the District Court ruled that the claimed unlawful activities are the same for all individuals represented by Data Privacy Stichting. The interests of all individuals can therefore be bundled. Furthermore, the fact that Data Privacy Stichting is an ad hoc foundation, funded by an American funder, is no obstacle. The independence and quality of the board of the foundation are guaranteed. Lastly, the GDPR (Article 80) forms no obstacle to representation of individuals on an opt-out basis.

As regards the applicable law, the District Court ruled that the GDPR (and its predecessor) were applicable, based on the Dutch establishment of Facebook. Regarding Dutch law on unlawful act, the Rome II Regulation establishes applicable law in the place where the damage occurs. As the individuals represented by the foundation suffer damage in the Netherlands, Dutch law applies.

[1] https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2021:3307.

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 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 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.

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 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.

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 22 April 2021, another truck cartel Opinion was issued by an Advocate General at the Court of Justice. This time, it concerned the case RH (name kept anonymous) v. Volvo AB, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB and Volvo Group España SA (“Volvo”), which had been instituted before the Madrid Commercial Court.[1] Acting Advocate General J. Richard de la Tour considered a question of jurisdiction put by the Commercial Court. Volvo took the position that the Madrid Commercial Court did not have jurisdiction to handle the antitrust damages case because “the place where the harmful event occurred or may occur” from Article 7(2) of Brussels I Regulation Recast[2] was not within that Court’s district. According to Volvo, the place in question was the place where the competition arrangements for trucks were established (i.e. where the cartel agreements were made), and that was not in Spain. The claimant had asserted that the place where its registered office was located, within the district of Madrid, could also be considered as such.

The Advocate General concluded that the place where the affected market is located falls under Article 7(2) of Brussels I Regulation Recast. In addition, the Advocate General concluded that the place where the injured party’s registered office is located may also fall under Article 7(2), because this interpretation fosters effective legal protection under competition law. Otherwise, a company that had purchased trucks in various Member States would have to initiate (the same) antitrust damages proceedings in those various States, which would hardly be efficient. The Advocate General did emphasise, however, that Member States are free to give certain courts exclusive jurisdiction to hear antitrust damages cases.

[1]              Advocate General J. Richard de la Tour, 22 April 2021, case C-30/20.

[2]              Regulation (EU) No 1215/2012 of the European Parliament and of the council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

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 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.

In a four-day trial starting on 19 April 2021, rival claimants the Road Haulage Association (RHA) and UK Trucks Claim (UKTC) argued before the Competition Appeal Tribunal (the CAT) that their applications should be approved, enabling them to proceed to trial.[1] Both claimants are potential class action representatives intending to sue the truck manufacturers that were involved in the truck cartel on behalf of injured parties that bought or leased trucks from the cartelists. The CAT will have to decide whether or not to award a “collective proceedings order” (CPO) to one, both or neither of the claims. A CPO is required under the UK class action regime for either claim to proceed.

The claims differ in that the RHA is looking to use an “opt-in” scheme, while UKTC is primarily looking to bring an “opt-out” claim, with an opt-in scheme put forward only as an alternative. Another difference is that the UKTC claim does not extend to second-hand trucks, while the RHA claim covers all trucks, both new and second-hand.

The truck manufacturers argued that neither RHA or UKTC should be awarded certification because their claims did not satisfy the criteria for approval. As early as October 2019, the cartelists tried to have the planned class actions struck out by challenging the funding arrangement underlying the lawsuits, but without success at first instance.[2] A hearing took place in January 2021 in appeal proceedings brought by DAF to challenge this ruling. The appeal continues.[3]

[1] The case references are: 1282/7/7/18 UK Trucks Claim Limited v. Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others; 1289/7/7/18 Road Haulage Association Limited v. Man SE and Others.

[2] Competition Appeal Tribunal 28 October 2019, [2019] CAT 26, Case No. 1282/7/7/18, 1289/7/7/18.

[3] According to Mlex, ‘DAF tells UK judges truck-cartel mass suits must be struck out over funding arrangements’, 26 January 2021.

On 13 May 2021, the CAT ruled that DAF could not amend its pleas by adding general mitigation defences at the current stage of the proceedings against Royal Mail Group Limited (Royal Mail) and BT Group Limited & Others (BT). The case is expected to come to trial in April 2022.[1] DAF sought to amend its pleas by adding additional general mitigation defences in relation to the passing-on of damage, i.e. that Royal Mail and BT mitigated any loss by negotiating lower input costs and/or otherwise reducing its costs of supply. The test for allowing such an amendment at a rather late stage in the proceedings is whether there is a realistic prospect of the plea succeeding at trial. The CAT ruled that for a defendant to be permitted to raise a plea of mitigation in such general terms as proposed by DAF, “there must be something more than broad economic or business theory to support a reasonable inference that the claimant would in the particular case have sought to mitigate its loss and that the steps taken by it were triggered by, or at least casually connected to, the overcharge (..)”.[2] The CAT further held that where a defendant is in the position to make specific averments as to the alleged overcharge, it will be bound to plead them, rather than plead a wholly general allegation of mitigation of loss. The CAT added that in such circumstances, a general plea is liable to be struck out, or permission to amend refused.[3] DAF had not pleaded such specific averments. Even though DAF could not could not be expected to know the detail of the internal operations of Royal Mail and BT, it could at least be expected to be aware of its own commercial dealings with each of them, according to the CAT.[4] As there was therefore no factual support identified by DAF, the CAT was not persuaded that DAF currently had a sufficiently arguable case. Consequently, the application for permission to plead the general mitigation defence was dismissed.

[1] CAT 13 May 2021, [2021] CAT 10, Case Nos. 1284-1290/5/7/18 (T).

[2] Para. 36.

[3] Para 37.

[4] Para 38.

On 18 May 2021, the German Federal Court of Justice (Bundesgerichtshof) ruled on the ‘best price clause’ that Booking.com uses in agreements with hotels.[1] This clause requires hotels not to rent hotel rooms via other channels for a lower price than indicated on Booking.com’s website. In a 2015 decision, the German competition authority announced that this provision was contrary to Article 101(1) TFEU. However, on appeal by Booking.com, the Higher Regional Court (Oberlandesgericht) in Düsseldorf ruled that the provision in question was permissible because it was a necessary ancillary agreement to the agency agreements with hotel companies, and therefore did not fall under the prohibition on cartels. In that respect, particular attention was given to the ‘free rider’ problem that had been raised by Booking.com. The problem is that consumers use Booking.com to obtain information, but then reserve directly at the hotel, meaning that although Booking.com bears the marketing costs it does not generate any sales. The Bundesgerichtshof held otherwise. It did not consider the best price clause to be objectively necessary for the agreement between Booking.com and its hotels, as Booking.com can also sell the rooms without this provision. It was also clear that Booking.com had been able to strengthen its market position in Germany after it stopped using the best price clause. There was no other exemption that Booking.com could invoke.

[1]              Bundesgerichtshof 18 May 2021, no. 099/2021.

On 10 May 2021, the CAT upheld the CMA decision issued in 2016 to the effect that GlaxoSmithKline plc (GSK) made payments aimed at delaying the potential entry of Paroxetine, which is relied on by patients to relieve symptoms of depression, in settlement of patent litigation.[1] The CMA found these payments to be in breach of competition law and imposed fines totalling £44.99 million on the companies involved. The companies appealed the decision. The CAT dismissed a number of grounds back in March 2018 and referred the remaining grounds to the CJEU for a preliminary ruling on various questions of EU law. In January 2020, the CJEU confirmed that these ‘pay for delay’ agreements are in breach of competition law and may constitute an abuse of a dominant position. In the decision of 10 May 2021, the CAT dismissed all remaining grounds of appeal of the companies’ against the CMA decision, opening the door for parties seeking follow-on damages.

[1] CMA Press release, ‘CAT upholds infringement decision for pay for delay pharma deals’, 10 May 2021.

On 4 June 2021, the British antitrust watchdog announced that it had started an investigation into whether Facebook had gained an unfair advantage over competitors in providing services for online classified ads and online dating, through how it gathers and uses certain data.[1] The European Commission (EC) has also started its own investigation into Facebook’s use of data.

[1] CMA press release, ‘CMA investigates Facebook’s use of ad data’, 4 June 2021.

Renault Trucks, Daimler AG and other truck manufacturers confronted with extensive antitrust damages claims in Europe have become aware that, in April 2021, a Spanish court asked the CJEU to clarify whether customers who had purchased dump trucks could also claim compensation.[1] The question from the Provincial Court (audiencia provincial) of Pontevedra dates from April last year, but was only recently disclosed.

Renault Trucks is being sued by Dalarjo et al. in connection with the sale of various trucks and participation in the truck cartel.

Renault Trucks argues that dump trucks are not covered by this decision, because they are not used  on the road and have no registration number. Dalarjo et al. dispute this argument. The Provincial Court of Pontevedra has now asked the CJEU for the meaning of ‘medium heavy’ and ‘heavy’ trucks to be further clarified.

[1] Dalarjo and Others Case C-285/21 (Case in progress).

On 11 March 2021, the CJEU was asked by a Spanish court to render a preliminary ruling on Article 5(1) of the Damages Directive (Directive 2014/104/EU)[1] in the context of an action for damages instituted in response to the trucks cartel.[2] We covered this earlier in Q (2021-1). The CJEU published the questions in Q2. The question put forward is as follows:

“Must Article 5(1) of 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 be interpreted as meaning that the disclosure of relevant evidence refers exclusively to existing documents in the control of the defendant or a third party or, in contrast, can Article 5(1) also include the disclosure of documents that must be created ex novo by the party to whom the request for information is made by compiling or classifying information, knowledge or data held by it?”

[1] Directive 2014/104/EU 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.

[2] AD and Others v. PACCAR Inc, DAF Trucks N.V. and DAF Trucks Deutschland GmbH, Case C-163/21.

On 20 April 2021, the European Commission (EC) ruled that the Österreichische Bundesbahnen-Holding Aktiengesellschaft (ÖBB), Deutsche Bahn AG (DB) and the Société Nationale des Chemins de fer belges (SNCB) had unlawfully formed a cartel. In doing so, they coordinated which party would submit an offer to a potential customer and agreed that the other parties would artificially increase their offer, as a result of which the best deal would always come from the lead carrier.[1]

As DB had previously committed a similar violation, its fine was increased by 50%. ÖBB cooperated fully with the investigation and reported itself to the Commission on own initiative. Consequently, it was not required to pay a fine. DB and SNCB also had their fines reduced by virtue of their cooperation in the investigation. The resulting fines totalled €48,324

[1] European Commission decision AT.40330 (Rail Cargo), paras. 30, 34 and 40.

On 28 April 2021, the European Commission (EC) ruled that Bank of America Corporation and Merrill Lynch International, Crédit Agricole SA and Crédit Agricole Corporate and Investment Bank, Credit Suisse Group AG and Credit Suisse Securities (Europe) Limited and Deutsche Bank AG, DB Group Services (UK) Limited and Deutsche Securities Inc. had violated the European competition rules by aligning their activities, increasing their income at the expense of third parties.[1]

The resulting fines imposed were as follows: €12,642,000 on Bank of America Corporation and

[1] European Commission press release, ‘Antitrust: Commission fines investment banks €28 million for participating in SSA bonds trading cartel’, 28 April 2021.

On 21 May 2021 Nomura Holdings, Inc. announced that it was considering appealing the fine (EUR 130 million) that had been imposed by the European Commission on its UK subsidiary, Nomura International, for its participation in a European Government Bond (‘EGB’) cartel. In a company statement, Nomura announced that it would consider all options after thoroughly examining the content of the Decision.

The fine stems from a European Commission decision in which seven investment banks were fined for having breached EU antitrust rules through the participation of a group of traders in a cartel in the primary and secondary market for EGBs.[1] According to the European Commission, the infringement by Nomura International in respect of anti-competitive conduct in the European Economic Area took place for a period of approximately 10 months in 2011.

The violation was a result of “certain historical behaviour” of two of Nomura International’s former employees. The European Commission stated that the traders of the seven companies operated in a closed circle of trust. These traders were in regular contact with each other mainly in multilateral chat rooms, where the relevant traders exchanged commercially sensitive information. They informed and updated each other on their prices and volumes offered in the run-up to the auctions and the prices shown to their customers or to the market in general. They discussed and provided each other with recurring updates on their bidding strategy in the run-up to the auctions of the Eurozone Member States when issuing Euro-denominated bonds on the primary market, and on trading parameters on the secondary market.

[1] According to Mlex, Antitrust: Commission fines investment banks € 371 million for participating in a European Governments Bonds trading cartel, 20 May 2021.

After the first fines imposed on ICAP in 2015 were declared invalid by the court in 2019, the European Commission (EC) decided on 28 May 2021 to impose fines on ICAP once again.[1] The new decision corrected the procedural error and included a detailed reasoning on the fine calculation. ICAP is now required to pay a fine totalling nearly €6.5 million.

[1] European Commission decision of 28 May 2021, Case COMP/AT.39861 (Yen Interest Rate Derivatives).

On 8 June 2021, various airlines went to court to reclaim interest on the fine they had wrongly paid. In 2010, the European Commission (EC) had imposed a fine on them for mutually discussing their prices, but this fine was reversed by the court in 2015.[1]

As the fine involved was €790 million, the interest will also be considerable. The steps reportedly taken by the airlines to recover this interest are in response to a ruling by the European Court of Justice in January 2021 that interest on wrongly paid fines must also be repaid.

[1] According to Mlex, ‘Cathay Pacific, SAS, Air Canada go to EU court over interest on annulled cargo-cartel fines’, 8 June 2021.

As a result of agreements made in the German coalition agreement of 2018, the Bundeskartellamt, the German antitrust watchdog, has published guidelines that companies can adhere to when working together with others as a cooperative in order to prevent the cooperative from being regarded (after the fact) as a cartel.[1]

The guidelines provide explanation of the background, purpose and scope of the prohibition on cartels and the possible leeway for collaboration, for enterprises working (not only) as a cooperative, including on the basis of practical examples. The guidelines are also intended for small and medium-sized enterprises, which often do not have access to specialised legal advice.

[1] Bundeskartellamt press release, ‘Leitlinien zur Vereinbarkeit des Genossenschaftswesens mit dem Kartellrecht – Öffentliche Konsultation’, 4 May 2021.

After commencing investigations against Facebook, Inc. in January 2021, the Bundeskartellamt reported in press releases on 18 May and 25 May 2021 that it had initiated proceedings against Amazon, Inc. and Google, Inc., respectively, based on the new rules for large digital companies.[1]

The 10th amendment to the German Competition Act (GWB Digitalisation Act) came into force in January 2021. A key new provision set forth in Section 19a GWB enables the authority to intervene earlier and more effectively, in particular against the practices of large digital companies. In a two-step procedure, the Bundeskartellamt can prohibit companies which are of paramount significance for competition across markets from engaging in anti-competitive practices.

In the case against Amazon, the Bundeskartellamt stated that they were examining whether Amazon was of such paramount significance. An ecosystem which extends across various markets and thus constitutes an almost unchallengeable position of economic power is particularly characteristic in this respect. According to the president of the Bundeskartellamt, this could apply to Amazon with its online marketplaces and many others, above all digital offers.

Similar proceedings have been initiated against Google Germany GmbH, Hamburg, Google Ireland Ltd., Dublin, Ireland, and Alphabet Inc., Mountain View, USA. Due to the large number of digital services offered by Google, such as the Google search engine, YouTube, Google Maps, the Android operating system or the Chrome browser, the company could be considered to be of paramount significance for competition across markets. A second set of proceedings will undertake an in-depth analysis of Google’s data processing terms, as Google’s business model relies to a very large extent on processing data relating to its users. The main question is whether users have sufficient choice as to how Google will use their data.

On 21 June 2021, the Bundeskartellamt also initiated such an inquiry into Apple to assess whether Apple’s new privacy policy, its App Store rules, and the pre-installation of its apps on iPhones require intervention. The assessment will examine the extensive integration of the

[1] Proceedings against Amazon based on new rules for large digital companies (Section 19a GWB); Proceeding against Google based on new rules for large digital players (Section 19a GWB) – Bundeskartellamt examines Google’s significance for competition across markets and its data processing terms; Apple faces German antitrust probe under country’s new tech rules.

On 17 June 2021, the Legal Affairs Committee of the European Parliament issued a Draft Report with recommendations to the European Commission on Responsible private funding of litigation.[1] The report also includes a proposal for a directive on responsible private funding of litigation. The Legal Affairs Committee proposes, amongst other things, to establish a system of authorisation for litigation funders to ensure that funding is only provided by entities that are committed to complying with minimum standards in terms of transparency, governance and capital adequacy.

[1] The Legal Affairs Committee, European Parliamentary Research Service, Responsible private funding of litigation. European added value assessment, 17 June 2021.

Italy introduced new rules regarding class action lawsuits on 19 May 2021.[1] The new rules make it possible to start class actions in more areas of law, as well as expanding the opt-in system (in which it is possible to join a class after a favourable judgment), creating better opportunities for evidence (such as disclosure with fines), and encouraging settlements. To emphasise their more general scope, the new rules are now included in the Italian Code of Civil Procedure (ICPC) and no longer in the Consumer Code.

[1] Law n. 31/2019, published on 18 April 2019.

On 28 April 2021, Martijn Snoep, Chairman of the Netherlands Authority for Consumers and Markets (ACM), gave a speech at the GCE Conference Sustainability and Cooperation.^[1] He argues that, in addition to government authorities, businesses and consumers, competition authorities must actively contribute to achieving the new European climate targets in order to prevent drastic climate change. In particular, a revision is needed of the Commission’s competition policy: a new interpretation of the fair share test.

The fair share test currently entails that anti-competitive arrangements between competitors are only permitted if consumers are fully compensated by the benefits that the agreements generate for them. On behalf of the ACM, Snoep argued for an exception to be made for agreements that lead to environmental benefits for the whole of society by the reduction of negative externalities. In other words, these agreements would meet the fair share test if the environmental benefits to society as a whole outweigh the negative effects to consumers. This requires companies to work together to achieve Europe’s climate goals. According to Snoep, the Commission’s current interpretation of the fair share test hinders such cooperation.

In response, the ACM has drawn up new sustainability guidelines. First, the ACM wanted to show how companies could cooperate to achieve sustainability goals without infringing competition rules. Second, the ACM told the business community that it was open to discussing with them their sustainability initiatives, that it was willing to give guidance, and that it would not impose any fines on companies that follow the guidelines in good faith. And third, the ACM’s aim was to show how the fair share test could be modified without opening the floodgates to all sorts of agreements aiming to achieve various public goals.

[1] Martijn Snoep, “Speech Duurzaamheid en samenwerking”, GCR Connect 28 April 2021.

On 11 June 2021, Mlex reported on plans for a new post-Brexit cooperation agreement between antitrust investigators in the EU and the UK.[1] The plan is designed to bridge the post-Brexit gap created by the UK’s departure from an arrangement that allowed competition authorities across the whole of Europe to share sensitive information and coordinate enforcement activities.

It is clear from the draft guidelines that should serve as the basis for further negotiations that the EU is aiming for an agreement that goes beyond existing bilateral agreements, such as those with Switzerland, Japan and Canada.

For example, the bilateral agreement with the United Kingdom should enable the parties to ask each other to collect information or carry out inspections on behalf of the other, as well as letting them share the confidential information collected. In addition, the intention would be for the parties to alert each other at an early stage if an investigation could damage the other party’s interests. Finally, both parties could attend confidential hearings in Brussels when a particular investigation gets to that stage.

The details of the deal are still being discussed; it is hoped that agreement can be reached by the end of the year.

[1] Lewis Crofts, ‘EU eyes unprecedented antitrust cooperation deal with UK to bridge post-Brexit gaps’, Mlex 11 June 2021.