The Netherlands

On behalf of the team

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