On 23 June 2021, the District Court of Rotterdam ruled in the case of claim vehicle Stichting Elevator Cartel Claim against the Dutch company Kone B.V. and the Finnish company Kone OYJ.[1] In this lift cartel damage case, the District Court had to assess whether the claims foundation to which some 40 public housing associations have assigned their claims had complied with its obligation to furnish facts regarding damage and causality. In doing so, the District Court ruled that in the case of specific indications that an agreement had been concluded between a public housing association and one or more cartel participants in the infringement period, it is plausible that the price paid was influenced by the lift cartel.

The District Court then assessed for each underlying party whether the foundation had made sufficient assertions to make the possibility of damage plausible. In this respect, it must always be proven that the party seeking damages contracted with or made payments to a cartel participant during the infringement period.

The District Court also held with regard to the passing-on defence that, in view of the point system to determine a reasonable (maximum) rent, it is not plausible that the injured parties passed on the additional price for the entire amount. In the end, the District Court concluded that all or part of the alleged damage had been made plausible for all underlying parties and that the case would therefore be referred (for that part) to the follow-up proceedings for the determination of damages.

[1] Rotterdam District Court 23 June 2021, CLI:NL:RBROT:2021:6636.

On 5 July 2021, the Gelderland District Court ruled on FNV’s claim against Wibra Supermarkten B.V.[1] (hereinafter: Wibra). Wibra had its employees make up for the fewer hours worked than stipulated in the CLA as a result of government measures in connection with the coronavirus pandemic. FNV considered the CLA provision applicable to these employees to be contrary to the law and sought an injunction against Wibra. Although Wibra had paid its staff members in full (in accordance with Article 7:628(1) of the Dutch Civil Code) without all hours being worked, it still placed the risk of being unable to work during the mandatory shop closure with the employees by recording the fewer hours worked, according to FNV.

The District Court ruled that the CLA was not contrary to the law because the employees were paid in full. FNV also argued that Wibra applied the CLA provision in a situation for which it is not intended and that Wibra had not acted in accordance with good employment practice. These arguments failed, too. FNV’s claim was denied; Wibra may demand that employees make up for the fewer hours worked caused by government measures. After the decision, Wibra voluntarily waived part of those hours.

[1] Gelderland District Court 5 July 2021, ECLI:NL:RBGEL:2021:3414

On 6 July 2021, the Amsterdam Court of Appeal rendered an interim judgment in the Air Cargo proceedings regarding the question of applicable law.[1] The proceedings were initiated by KLM, British Airways and Lufthansa and other airlines against the Dutch claim vehicles Equilib Netherlands B.V. and Stichting Cartel Compensation and concerned in particular the status of the cartel decision and the law applicable to the claims.

First of all, the Court of Appeal held that it could rely on the facts established by the European Commission in the cartel decision, even if an appeal is pending against this decision.

As far as applicable law is concerned, the Court of Appeal decided that Article 4 of the Unlawful Act (Conflict of Laws) Act (Wet conflictenrecht onrechtmatige daad “WCOD”) offers the relevant legal framework. The Court of Appeal found that, in principle, the law of the state of the airport of departure is applicable to each individual claim of each individual shipper per flight.

The Court of Appeal went on to note that this outcome would lead to a strong fragmentation of the applicable law. Strict application of Article 4 WCOD would lead to dozens of different applicable legal systems. In order to prevent this fragmentation, the Court of Appeal ruled first that the individual claims of each shipper must be considered as a whole, analogous to the concept of ‘a single continuous infringement’ as applied by the Commission in its cartel decision. Secondly, the Court of Appeal found that not only the airport of departure, but also the airport of arrival is relevant to the determination of the applicable law. The scope of Article 4 WCOD is not limited to the place where competition is directly harmed by the anti-competitive conduct, but also includes the place that has been affected indirectly (for example in case of umbrella damage).

As also confirmed by the Commission in its cartel decision,[2] the Aircargo cartel led to the restriction of competition in several places. The Court of Appeal ruled that, as a result, the claim of a single shipper is already governed by various applicable legal systems. The WCOD does not provide a solution for such a case. In order to fill this loophole in the legislation, the Court of Appeal found guidance in established (EU) principles, such as legal certainty and effectiveness. The Court of Appeal noted that the EU legislature provided for this issue in Article 6(3)(b) of Regulation (EC) No 864/2007 (also referred to as ‘Rome II’), in which the claimants are given the opportunity to choose the applicable law themselves under strict conditions.

Since the claimants in this case (Equilib and SCC) had requested the applicability of Dutch law, the Court of Appeal concluded that the claimants’ claims for damages are governed by Dutch law. This applies to claims relating to flights falling within the scope of the cartel decision (flights that have their departure and/or arrival within the EEA and Switzerland).

[1] Amsterdam Court of Appeal 6 July 2021, ECLI:NL:GHAMS:2021:1940.

[2] See the Commission’s press release of 17 March 2017: Antitrust: Commission re-adopts decision and fines air cargo carriers € 776 million for price-fixing cartel.

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 19 July 2021, the summons of Stichting Emission Claim against Stellantis, Peugeot, Citroën, Opel, General Motors and Bosch (hereinafter: Stellantis et al.) was entered into the central register for class actions.[1] In these proceedings, Stichting Emission Claim is seeking compensation for the loss suffered by the injured parties as a result of the diesel fraud in the Netherlands, representing the interests of buyers and lessees who purchased, leased or registered a car in the Netherlands in the period between 1 September 2009 and 1 September 2019. The car manufacturers told buyers that the diesel cars they produced were economical and clean, while in reality it turned out differently. Tools were used in various ways to manipulate the emissions of diesel engines. According to the Stichting, this constitutes an unlawful act.

The race to be the exclusive representative of the interests in this case is now in full swing. Two other foundations issued a summons against Stellantis. One of these foundations, Stichting Diesel Emission Justice, is assisted by bureau Brandeis.

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBAMS-dagvaarding-collectieve-vordering-Stallantisnv-Peugeot-Nederlandnv-Citroen-Nederlandbv-Opel-Nederlandbv-General-MotorsLLC-4.pdf

On 27 July 2021, the ‘s-Hertogenbosch Court of Appeal ruled in the proceedings concerning the claimant Deutsche Bahn’s prestressing steel cartel against prestressing steel manufacturers Nedri Spanstaal B.V., Arcelormittal España SA, Drahtwerk Köln GmbH and Trafilati Acciai S.P.A. and Fapricela-Indústria de Trefilaria S.A. and a few group companies.[1] These proceedings included Deutsche Bahn’s obligation to furnish facts. The Court of Appeal ruled that Deutsche Bahn must present sufficient factual elements and submit specific information to that end in order to make it plausible that it may have suffered damage. This concerns information that specifies which, when, from whom and at what price cartel products were purchased. According to the Court of Appeal, the submission of a few examples is insufficient.

This obligation to furnish facts does not only entail the identity of the claimants – which means that a claims foundation must comply with this obligation to furnish facts for each individual underlying party – it must also give insight into the original transactions (based on contracts, invoices, packing slips, records, annual report and accounts, etc.). Although the claim should normally be specified at the initial stage of the proceedings, the Court of Appeal offered Deutsche Bahn the opportunity to provide the required explanation.

[1] ‘s-Hertogenbosch Court of Appeal 27 July 2021, ECLI:NL:GHSHE:2021:2341.

On 11 August 2021, the District Court of Midden-Nederland rendered a decision in Algemene Nederlandse Burger Belangenvereniging (ANBB) v. de vereniging Nederlands Huisartsen Genootschap (NHG).[1] The dispute pertains to ANBB’s application for a preliminary examination of nine witnesses. NHG opposes this preliminary examination of witnesses. Principally, it asserts that ANBB’s request should be declared inadmissible because the requirements of 3:305a DCC have not been met and ANBB has no interest in a preliminary examination of witnesses.

The District Court concluded that ANBB did not meet the various requirements laid down in Article 3:305a DCC for bringing a valid action. Neither its Articles of Association nor its other assertions in these proceedings made it plausible that it has a clearly and specifically described own interest in these proceedings. The District Court stipulated that there were no “similar interests” as referred to in Article 3:305a DCC. In addition, the object according to the articles of association is too abstract to establish that ANBB promotes specific interests. Nor has it been made sufficiently plausible that ANBB has the backing of a relevant support base regarding the issue in this case and is therefore sufficiently representative. The court declared ANBB’s request inadmissible.

[1] District Court of Midden-Nederland 11 August 2021, ECLI:NL:RBMNE:2021:3778.

On 8 September 2021, the Amsterdam District Court rendered an interim judgment in the case of claim vehicle CDC Projects 13 SA against the Finnish company Kemira Chemicals OY with regard to the sodium chlorate cartel,[1] which the European Commission established and fined in its decision of 11 June 2008.[2] CDC’s proceedings have been ongoing since 2014, and in the latter judgment the District Court ruled on, among other things, applicable law, joint and several liability and the obligation to contribute.

The parties agree that the applicable law is determined by the production site where the sodium chlorate was delivered. With regard to the joint and several liability and obligation to contribute of companies belonging to the same group, the District Court found that Kemira was the only company held liable and that it has been established that Kemira sold sodium chlorate as a participant in the cartel. According to established CJEU case law, Kemira can be held fully liable there under civil law. In that case, the mutual obligation to contribute is irrelevant to the liability towards CDC, and the District Court dismissed the issues of joint and several liability and the (internal) obligation to contribute as no longer relevant.

The proceedings continued with an exchange of statements on the subjects of “overcharge” and “volume of commerce”, in which the subject of “pass on” can also be discussed.

[1] Amsterdam District Court 8 September 2021, ECLI:NL:RBAMS:2021:4933.

[2] Commission Decision of 11 June 2008, COMP/38.695 (Sodium Chlorate).

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 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 8 September 2021, the court in Stichting Massaschade & Consument v. Airbnb Ireland decided on the Stichting’s request to extend the term for lodging a claim.[1] It follows from Article 1018d(1) of the Dutch Code of Civil Procedure (DCCP) that a legal entity referred to in Article 3:305a DCC can bring a class action for the same event or events within three months before the same court where a class action has already been brought. This period may be extended by a maximum of three months in accordance with paragraph 2 if a legal entity that meets the conditions requests the court to do so. In Stichting Massaschade & Consument v. Airbnb Ireland, the Stichting based this claim on the fact that it wished to await preliminary ruling proceedings before the Supreme Court, which were instituted against Airbnb on a different matter. The Stichting asserted that initiating proceedings on this point before that time would be an unnecessarily costly and time-consuming affair. It therefore requested the District Court to grant it a 9-month extension. The District Court went on to rule that there is no legal basis for doing so, stating first and foremost that the period of nine months is longer than the maximum period of three months that is permitted. Secondly, the District Court concluded that the Stichting wished to make the decision whether or not to bring a class action dependent on the outcome of preliminary ruling proceedings. It considers this to be contrary to the literal text of Article 1018d(2) DCCP, as it follows from said text that the interest group must have already decided to also bring a class action, but merely needs more time for its execution than the initial three months.

[1] Cause-list decision of 8 September 2021 in STICHTING MASSASCHADE & CONSUMENT v. AIRBNB IRELAND UC.

On 8 September 2021, the District Court of The Hague ruled on the consequences of late entry of the summons into the central register for class actions.[1] The summons of Stichting Nationaal Comite Tegen Verplichte Mondkapjes was only entered into the register more than two weeks after being issued. The writ, too, was only submitted with the court registry more than two weeks later. As a result, the period of two days prescribed in Article 1018c(2) was not complied with, resulting in these acts taking place after the deadline. The District Court found that the prescribed entry in the register was intended to inform third parties wishing to initiate proceedings as soon as possible of the action brought. As follows from Article 1018d DCCP, the time limit for bringing the same action is three months and commences after the entry of the summons in the register. Based on this premise, third parties were not prejudiced by the circumstance that the entry in the register was not made within two days, but more than two weeks after the summons was issued. The District Court also considers the tardy submission of the writ to the court registry to be nothing more than an administrative omission, without prejudicing any (potential) parties to the proceedings. Consequently, a late entry in the register or late submission to the court registry need not lead to the Stichting’s claims being inadmissible.

[1] District Court of The Hague, 8 September 2021, C/09/616983.

In June 2018, British Airways (“BA”) fell victim to a hack, exposing the payment details of more than 400,000 customers. In response, the UK’s data protection authority, the Information Commissioner’s Office (“ICO”) started an investigation. Since the BA hack occurred in June 2018, i.e. before the UK left the EU, the ICO investigated the data breach on behalf of all European authorities as lead supervisory authority under the GDPR. The investigation resulted in a 20 million pound fine imposed by ICO on 16 October 2020.

The ICO investigation was quickly followed by a class action suit in April 2020, which is thought to be the biggest claim for a data breach in British legal history. In July 2021, BA announced that it had reached a settlement with a number of the claimants. As the contents of the settlement agreement remain confidential, it is unclear how many of the affected claimants will receive compensation. Nevertheless, it is expected that the pay-outs amount to 2,000 pounds per claimant.[1]

[1] Information on the settlement & ICO fines British Airways £20m for data breach affecting more than 400,000 customers, 16 October 2020

In Q1, we wrote about the decision of the High Court that was detrimental to investment funds Allianz Global Investors et al. The High Court had not given them permission to appeal the decision that allowed the banks that participated in the foreign exchange cartel in the proceedings instituted against them by the funds to assert in those proceedings that the investment funds passed on the damage they believed to have suffered to investors. The High Court initially had not given permission for reasons concerning case management because it feared a delay in the proceedings if the appeal were allowed.

In Q2, both the investment funds and the other claimants were given permission to appeal this decision. This will give them another opportunity to challenge the passing-on defence of the cartelists. According to the claimants, only the investment funds have a possible legal claim against the cartelists and this does not apply to independent investors. In addition, they believe that if the District Court were to agree with this passing-on defence of the banks, this would have far-reaching (and undesirable) consequences for the scope of future claims and thus also for the necessary provision of proof and the surrender of and access to documents in these and similar proceedings. The hearing is scheduled for 8 December 2021,[1] so that we will report on it in Q4.

[1] According to MLex, ‘Allianz Global Investors, others win permission to appeal UK forex cartel ‘pass-on’ ruling’, 1 July 2021.

In July 2021, the Competition Appeal Tribunal (CAT) examined the battle between two competing mass claim representatives for permission to conduct an action for damages during a five-day hearing. These are proceedings against various banks, including JPMorgan Chase, Barclays and UBS because of their role in the spot forex trading cartel[1]. This requires the CAT to pioneer in the context of the UK class action regime because it is the first time that the CAT is asked to render a decision on which of the two potential mass claim representatives may conduct the proceedings. Both aim to apply an opt-out regime in which injured parties automatically participate, unless they indicate that they do not wish to do so. It is therefore impossible for both claims to result in actual proceedings and the CAT will therefore have to choose which of the two will be allowed to continue.

The two potential representatives are Michael O’Higgins, former head of the UK pension regulator, and Phillip Evans, former chairman of the Competition and Markets Authority (CMA) inquiry group.[2] Both want to represent thousands of institutional investors and act on their behalf in order to recover the damage they have suffered from the banks.

During the hearing, the suitability of both claims was discussed, including in the areas of litigation planning, funding, and definitions of the group to be represented. O’Higgins’ group managed to obtain more financing than Evans’ group, but Evans argued that this would not necessarily mean that O’Higgins’ claim for damages is more suitable than his and that his financing would in any event be sufficient.[3] The banks defended their position, inter alia, by asserting that, in so far as one of the proceedings were even permitted, only an opt-in regime would be appropriate in this case because of the nature of the group and the value of the possible claim. According to the banks, the opt-out regime as introduced in the UK legal system was not intended for large and well-to-do companies like the injured parties in this case.[4] As far as possible representatives are concerned, an opt-in regime is in fact not suitable because it entails practical difficulties such as having to approach and contact potential injured parties, which will take a lot of time.

The group of injured parties to be represented will include pension funds, asset managers and hedge funds, and the claim for damages to be submitted is estimated at around seven billion euros.

[1] European Commission press release, ‘Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel’, 16 May 2019.

[2] Case references are 1329/7/7/19 Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others and 1336/7/7/19 Mr Phillip Evans v Barclays Bank PLC and Others.

[3] According to MLex, ‘Rival claimants for forex-rigging damages lay out core arguments for trial suitability’, 12 July 2021.

[4] According to MLex, ‘UBS insists forex-cartel mass damages claims only viable as ‘opt in’ actions, 14 July 2021.

On 13 July 2021, another lawsuit was filed in connection with the truck cartel[1] at a London court. UK retailer William Morrison Supermarkets is claiming damages from truck manufacturers DAF Trucks and Volvo for their involvement in the cartel together with other truck manufacturers that received a record fine from the European Commission in 2017.[2]

[1] European Commission decision of 19 July 2016, case AT.39824 (Trucks).

[2] According to MLex, ‘Retail group Morrisons sues Volvo, DAF in UK over trucks cartel’, 13 July 2021.

On 15 July 2021, the Japanese bank Mitsubishi UFJ Financial Group (formerly Bank of Tokyo-Mitsubishi) told a UK judge during the last day of a five-day hearing at the UK’s specialised competition court that the allegation of “tacit coordination” was erroneous and detrimental to the mass antitrust claim lodged by former inquiry group chairman of the Competition and Markets Authority Phillip Evans.[1]

MUFG was fined nearly 70 million euros ($83 million) by the European Commission in May 2019 for being involved in one of two cartels in the spot forex market, which are agreements to exchange a specific amount of one currency against another.

Evans is one of two class representatives seeking, on behalf of thousands of investment firms, to sue MUFG and others for billions of pounds in damages over the cartel activity. He argued that the sharing of information within the cartel facilitated tacit, or inexplicit, coordination between traders to widen “bid-ask” spreads. Further, he said that due to their market power, the cartelist banks had the ability and incentive to “engage” in tacit coordination on spreads.

MUFG told the UK judge that this was a flawed allegation and that the tacit coordination is just a theory. It is unfeasible for a few participating traders to tacitly control the market and cause this alleged widespread coordination of spreads. Moreover, the banks were not in a position to engage in tacit coordination as their market shares fluctuated over time.

It was the Commission’s investigation that revealed that some individual traders in charge of forex spot trading, on behalf of banks, exchanged sensitive information and trading plans, and occasionally coordinated their trading strategies.[2] It said that activity, resulting from a “tacit understanding” between traders, enabled informed market decisions.

MUFG said about this investigation that they contest the notion that you can go from incidental spread exchanged between a handful of traders to tacit coordination of all spreads by those traders, and then to tacit coordination of all spreads by those banks.

[1] According to MLex, “Banks didn’t and couldn’t use ‘tacit coordination’ to rig forex prices, MUFG tells UK judge,” 15 July 2021.

[2] European Commission, “Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel,” 16 March 2019, https://ec.europa.eu/commission/presscorner/detail/it/IP_19_2568.

On 26 July 2021, the CAT ruled that cartelist NTN may not appeal the Tribunal’s decision of 18 June 2021[1] in which the Tribunal disregarded some of NTN’s defences regarding mitigating circumstances for the claimants by reducing other costs.[2] NTN was fined by the European Commission (EC) in 2014 for its participation in the ball bearing cartel.[3] Ball bearings are used to attach the wheel axle to a vehicle or to attach the wheel to the axle. In response to the EC’s fining decision, Fiat Chrysler Automotives (FCA) initiated proceedings in which it wants to claim its loss from NTN. The CAT ruled that the appeal that NTN wanted to lodge against the decision of 18 June 2021 does not have a “real prospect of success” and is therefore not allowed.

[1] CAT 18 June 2021, [2021] CAT 14, Case No 1357/4/7/20 (T).

[2] CAT 26 July 2021, [2021] CAT 25, Case No 1357/5/7/20 (T).

[3] European Commission decision of 19 March 2014, Case Comp/39922 (Bearings).

On 30 July 2021, Prysmian, producer of underground and submarine cables for the transmission and distribution of electricity, reached a confidential settlement agreement with Scottish and Southern Energy and other energy companies in proceedings concerning Prysmian’s involvement in the power cables cartel.[1] On the side of Prysmian, the entities involved in the settlement agreement are Prysmian Cable & Systems Limited, Prysmian Cavi E Sistemi SRL, Prysmian S.P.A., Prysmian Construction Company Limited and Prysmian Cables (2000) Limited, and on the other side SSE PLC, Scottish and Southern Energy Power Distribution Limited, SSE Services PLC, Southern Electric Power Distribution PLC, Scottish Hydro Electric Power Distribution PLC, Scottish Hydro Electric Transmission PLC.[2]

[1] European Commission decision of 2 April 2014, Case AT.39610 (Power cables).

[2] CAT Consent order of 20 August 2021, Case Nos 1353/5/7/20 (T).

On 29 September 2021, the Court of Appeal ruled on the claim lodged by 28 thousand individuals from the Bonga Community against Shell.[1] The primary issue in this appeal was whether the claims for remediation relief against Shell of the 28 thousand individuals from the Bonga Community could be pursued by two individuals from this Community by way of representative action. The Court of Appeal rejected the appeal and ruled that these claims could not be lodged in the form of a representative action. In its judgment, the Court of Appeal analysed the circumstances under which a case could be instituted as an action by representatives of persons with the same interest, along with the specific requirements and related limitations. The Court of Appeal was of the opinion that this was a threshold issue and that in this case, the claim could not constitute a representative action. Lord Justice Coulson stipulated that the fact that the claimants have the same interests is a basic ingredient and that this was entirely missing in these circumstances. In particular, the requirement of having the same interest was not satisfied with regard to the scope of the claim. Each individual claim would therefore be “tried to a conclusion”, which would lead to a patchwork of success – which, in his opinion, is not a representative action. For the Bonga Community, this means that each of its members would need to prove individually that he, she or it had individually suffered loss and damage. As a precedent, certainly in cases in which there is a need for an individual analysis of the causation and the loss and damage, claimants may experience difficulties in complying with the “same interest” test.

[1] Court of Appeal 29 September 2021, A1/2020/1490.

On 15 July 2021, the Court of Justice of the European Union (the “Court“) rendered a judgment that clarifies which national courts within an EU Member State have jurisdiction over actions for cartel damages.[1] Questions about the interpretation of Article 7(2) of the Recast Brussels Regulation[2] arose in Spanish proceedings between RHS, an undertaking domiciled in Spain, on the one part, and the Volvo Group on the other, concerning payment of damages for its involvement in the truck cartel. Article 7(2) of the Recast Brussels Regulation confers jurisdiction on the court for the place where the damage occurred.

RHS had purchased trucks in Cordoba, Spain, and also has its registered office there but it brought its action before the court of Madrid. The Volvo Group consequently contended that the Spanish courts did not have international jurisdiction since the cartel was concluded in other Member States of the EU and the ‘place where the harmful event occurred or may occur’ referred to in Article 7(2) is the place where the truck cartel was concluded, and not where the applicant in the main proceedings is domiciled.

The Spanish court therefore asked the CJEU, in essence, whether Article 7(2) must be interpreted as meaning that this provision constitutes a rule which strictly concerns international jurisdiction or whether it is a dual or combined rule which also operates as a rule on local territorial jurisdiction, without any need to refer to domestic regulation.

Briefly put, the Court held:

• Article 7(2) directly and immediately confers both international and territorial jurisdiction on the courts for the place where the damage occurred and therefore there is in principle no need to refer to national rules determining the jurisdiction of courts;
• However, there is one exception: the delimitation of the court’s jurisdiction within which the place where the damage occurred is situated, is as a rule a matter for the organisational competence of the Member State to which that court belongs, and jurisdiction may be centralised before a single specialised court. In other words, EU Member States are allowed to designate centralised courts to deal with cartel damages cases;
• In the absence of such a specialised court, there are two options: (1) where the injured party purchased goods affected by the cartel exclusively within one EU Member State within the affected market, the courts of that Member State have jurisdiction, or (2) where the injured party has made purchases in several places, each undertaking that has been harmed may bring a follow-on action before the court where it has its registered office.

[1] Judgment of the Court of 15 July 2021 in Case C-30/20, ECLI:EU:C:2021:604.

[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 judgements in civil and commercial matters.

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 13 July 2021, the German Federal Court of Justice, the Bundesgerichtshof (BGH), upheld a model for collecting mass claims.[1] The decision is a breakthrough for the possibility of collective redress in Germany. This applies not only, but in particular, to cartel damage claims. With this decision, the BGH anticipated the upcoming reform act for class actions that is still to enter into force. Importantly, the BGH did not see a significantly increased risk of unqualified legal services in the model for mass claims. In addition, the BGH clarified that the model for mass claims does not lead to conflicts of interest. This is because they all have a common interest in the most efficient implementation possible. The BGH concluded that there are risks related to the different degree of likelihood of execution of claims when these are combined in a group arrangement. Claims that have a lower likelihood of execution could adversely affect claims that have a higher likelihood of execution. The BGH nevertheless ruled that the advantages of sharing the cost risks and strengthening the negotiating position outweigh these possible risks.

Although the decision of the BGH related to a somewhat special scenario (enforcement of claims against the former director of an insolvent company), its relevance goes far beyond the collection of claims related to insolvent companies. Claims for damages due to cartel formation have often been the frontrunners in shaping the legal landscape for collective redress in Germany. Many leading cases, such as the well-known CDC cases (“Cartel Damages Claims”) before the Court of Appeal of Düsseldorf and the European Court of Justice related to claims due to cartel formation.

[1] Bundesgerichtshof 13 July 2021, II ZR 84/20.

On 14 September 2021, the ACM imposed a fine of more than 39 million euros on Samsung Electronics Benelux B.V. for coordinating retail prices of all Samsung televisions with various retailers from January 2013 through December 2018.[1] These seven retailers jointly represented a large majority of Samsung television sets sold in the Netherlands.[2]

Using so-called spider software, Samsung was able to analyse price movements before contacting various retailers to urge them to adjust their retail prices for television models to a market price desired by Samsung. This is evidenced by both internal and external emails, and WhatsApp messages. Samsung stated that the same price had also been communicated to competing retailers.[3]

Providing indicative list prices or non-binding recommended retail prices is not prohibited. However, the ACM is of the opinion that Samsung went beyond what is permissible, because it systematically and directly intervened in the competition between the retailers.[4] This action by Samsung created a climate in which retailers were discouraged from taking the initiative to reduce prices, which is to the detriment of consumers. The agreements existed for more than six years.

[1] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, para. 1.

[2] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, para. 9.

[3] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, para. 3.

[4] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, paras. 5-8.

On 30 September 2021, the ACM established that three companies, Rotie B.V., UCO Kampen B.V. and Nieuwcom B.V., violated the cartel prohibition when purchasing used deep-frying oil. In total, a fine of nearly EUR 4 million was imposed on the companies involved, with the exception of UCO Kampen B.V. due to a bankruptcy.[1] The ACM established that Rotie B.V. had made cartel agreements with UCO Kampen B.V. and Nieuwcom B.V. The ACM had not found any cartel agreements between UCO Kampen B.V. and Nieuwcom B.V.[2]

Emails and WhatsApp messages have shown that representatives of the companies involved had been in contact with each other about the collection and purchase of used deep-frying oil from suppliers located throughout the Netherlands.[3] The purpose of said conduct was to keep the market calm, to divide suppliers and to bring down the purchase prices, allowing the companies to increase or retain their margins.[4] The ACM found that, in view of the market shares of the companies involved, it has been established that they did not have such a weak position that the conduct had a very minor impact on competition.[5] This was mainly to the detriment of restaurants and snack bars.[6]

[1] ACM Decision, ACM/UIT/562190, paras. 1-3.

[2] ACM Decision, ACM/UIT/562190, para. 4.

[3] ACM Decision, ACM/UIT/562190, para. 25.

[4] ACM Decision, ACM/UIT/562190, para. 26.

[5] ACM Decision, ACM/UIT/562190, para. 38.

[6] ACM Decision, ACM/UIT/562190, para. 4.

On 5 August 2021, the Bundeskartellamt announced that it had imposed fines totalling approximately 21 million euros on three manufacturers and two retailers of musical instruments and on staff responsible, as they are accused of resale price maintenance (manufacturers and retailers) and of agreeing on horizontal price-fixing (retailers).[1] The manufacturers are Yamaha Music Europe GmbH, Roland Germany GmbH, and Fender Musical Instruments GmbH. The retailers are Thomann GmbH and MUSIC STORE professional GmbH. In setting the fine, the Bundeskartellamt took into account that the parties involved had cooperated extensively with the authority in uncovering the agreements and that a settlement could be reached.

[1] Bundeskartellamt press release, ‘Bundeskartellamt imposes fines on manufacturers and retailers of musical instruments’, 5 August 2021.

On 17 August 2021, the Bundeskartellamt imposed a fine totalling around 2 million euros on Fond Of GmbH, Cologne, on account of vertical price fixing.[1] The President of the Bundeskartellamt stated that Fond Of set minimum prices for its school backpacks and school bags and made sure that the retailers involved would not undercut these prices. Fond Of GmbH as well as the retailers involved monitored compliance with the prices and rules for online sales at regular intervals and called on retailers to comply with these. In setting the fine, the Bundeskartellamt took into account that the company had cooperated extensively with the authority.

[1] Bundeskartellamt press release, ‘Bundeskartellamt imposes fine on the Cologne-based company Fond Of GmbH’, 17 August 2021.

On 15 July 2021, the CMA announced that it had imposed fines totalling more than £260 million on various pharmaceutical firms, for competition law breaches in relation to the supply of hydrocortisone tablets for which they charged excessive and unfair prices to the National Health Service (NHS). The CMA’s decision also entails that the NHS may claim damages for the conduct of the companies.[1]

The CMA had previously conducted an investigation into the conduct of these pharmaceutical companies, which revealed that Auden Mckenzie Ltd. and Actavis UK Ltd. (now known as Accord-UK Ltd.) had been massively overcharging the NHS for hydrocortisone tablets for nearly ten years. These pharmaceutical companies also abused their dominant position by paying two potential competitors, Waymade PLC and AMCo Ltd. (now known as Advanz Pharma Services Ltd.), not to enter the market.

[1] CMA press release, ‘CMA finds drug companies overcharged NHS, 15 July 2021.

The CMA imposed fines of more than £100 million on Advanz Ltd. after it had excessively inflated the price of thyroid tablets for more than eight years, to the detriment of patients and the National Health Service (NHS).[1]

A previous investigation by the CMA reveals that in the period from 2009 to 2017, Advanz Ltd. charged unfair prices for the supply of liothyronine tablets used to treat thyroid hormone deficiency. Advanz Ltd. was able to do so because there was little or no competition in the sale of liothyronine tablets. The investigation was part of the CMA’s ongoing work in the pharmaceutical sector.

[1] CMA press release, ‘CMA fines pharma firm over pricing of crucial thyroid drug’, 29 July 2021.

According to the CMA’s preliminary findings, Pfizer Ltd. and Flynn Ltd. abused their dominant position by charging the NHS unfair prices for four years for phenytoin sodium capsules, an anti-epilepsy drug. [1]

In the CMA’s opinion, the companies used a legal loophole by de-branding the drug, with the effect that the drug was not subject to price regulation in the way branded drugs are.

The companies Pfizer Ltd. and Flynn Ltd. can respond to these preliminary findings in the Statement of Objections. After studying these objections, the CMA must decide whether they have broken the law.

[1] CMA press release, ‘CMA accuses pharma firms of illegal pricing’, 5 August 2021.

On 8 July 2021, the European Commission published a press release stating that the EC has found that Daimler, BMW and Volkswagen group (Volkswagen, Audi and Porsche) breached EU antitrust rules by colluding on technical development in the area of nitrogen oxide cleaning in the period between 25 June 2009 and 1 October 2014.[1] The Commission has imposed a fine of €875,189,000. Daimler was not fined, as it had revealed the existence of the cartel to the Commission. All parties acknowledged their involvement in the cartel and agreed to settle the case. This is the first time that the Commission concluded that collusion on technical development amounts to a cartel.

The five car manufacturers possessed the technology to reduce harmful emissions beyond what was legally required under EU emission standards. But they avoided to compete on using this technology’s full potential to clean better than what is required by law. Instead, they held regular technical meetings to discuss the development of the selective catalytic reduction (SCR) technology which eliminates harmful nitrogen oxide (NOx) emissions from diesel passenger cars through the injection of urea (also called “AdBlue”) into the exhaust gas stream. They also removed the uncertainty about their future market conduct concerning NOx emissions cleaning beyond and above the legal requirements (so-called “over-fulfilment”) and AdBlue-refill ranges. This means that they restricted competition on product characteristics relevant for the customers.

The conduct of the five car manufacturers constitutes an infringement by object in the form of a limitation of technical development under Article 101(1)(b) of the Treaty and Article 53(1)(b) of the EEA Agreement.

[1] European Commission, “Antitrust: Commission fines car manufacturers €875 million for restricting competition in emission cleaning for new diesel passenger cars”, 8 July 2021, https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3581.

Several banks fined by the EC in May 2021 for participation in a European government bond trading cartel (which we reported on in Q2) filed appeals against the EC’s decision with the EU General Court. UBS, Bank of America, Portigon, Nomura, Unicredit and Natixis have started legal proceedings against the fines. That means that only the whistleblower bank NatWest has not appealed the fine. All banks declined to comment on their challenge nor did they reply to requests for comments.[1]

[1] Case references are T-449/21 Natixis v Commission, T-453/21 UniCredit v Commission, and T-455/21 Nomura v Commission.

On 12 July 2021, Cargolux brought an action against the European Commission before the General Court of the EU for the recovery of unpaid interest following annulment of the antitrust fine imposed on the airline. Cargolux is claiming more than 8 million euros in interest.[1]

In support of its application, the applicant puts forward two pleas:

1. First plea in law, alleging that the contested decision notified by the letter of 30 April 2021 is vitiated by an error of law and must be annulled in full pursuant to Article 263 TFEU. The applicant alleges that the contested decision incorrectly asserts that Cargolux’s request of 2 February 2021 for payment of the Default Interest Amount Payable and the Compound Interest Amount Payable is time-barred and inadmissible.
2. Second plea in law, alleging that the Commission’s breach of the first paragraph of Article 266 TFEU renders the Union non-contractually liable to pay compensation equal to the Default Interest Amount Payable and the Compound Interest Amount Payable to Cargolux, pursuant to the second paragraph of Article 266 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU.

[1] Cargolux v. Commission 12 July 2021, (Case T-420/21).

In an interview with MLex on 5 July 2021, Olivier Guersent, top official at the European Commission, said that the Commission will not soften its approach in the medium or long term because of Covid-19.[1]

During the pandemic, there was a special regime of subsidies and bailouts that allowed governments to put vulnerable industries on life support, and merger control slowed down. Now, the European Commission is thinking about how to move beyond this special regime. The normal application of competition law will be crucial to ensuring that Europe’s economies recover fully from the crisis, says Guersent.

About the “failing firm” provision, for example, Guersent says that this is a valid defence, adding however that the Commission will continue to insist on a high standard of proof.

The merger rules will not change as there is no consensus for changing the rulebook in either direction. Different standards will not be applied. But new rules might be needed for entrenched markets.

As regards cartel enforcement, the Commission is working on new techniques to better identify, detect and prosecute cartels. It is also working on the efficiency of the Leniency Notice. However, raids will continue to be carried out.

[1] MLex, ‘No competition enforcement let-up as Europe exits pandemic, Guersent says’, 5 July 2021.

EU cartel probes have tailed off in recent years as the European Commission sees fewer companies coming forward to expose price fixing in return for lower fines.[1] Maria Jaspers, who heads up the European Commission’s anti-cartel division, said that the Commission is “actively assessing” how to make the bloc’s whistleblower programme more “attractive” in light of market changes.

According to the head of Germany’s competition authority, Andreas Mundt, antitrust enforcers need to consider whether to give whistleblowers immunity from follow-on damages.[2] Cancelling the right of third parties to sue a leniency applicant for compensation was a “difficult question from a legal point of view”, Mundt noted. If that were to happen, the Commission would likely have to revisit an EU directive from 2014 that sets out how customers can sue for damages suffered at the hands of price fixers.

[1] Lewis Crofts and Nicholas Hirst, ‘EU’s whistleblower program may get tweaks to encourage cartel disclosures, senior official says’, MLex 22 September 2021.

[2] Nicholas Hirst and Tono Gil, ‘Cartel whistleblowers may need protection from damages actions, Bundeskartellamt chief says’, MLex 14 September 2021.