On 17 December 2020, the Advocate General’s opinion was published in case C-709/19, in which the Supreme Court put preliminary questions to the European Court of Justice on jurisdiction in class actions pursuant to the Brussels I Regulation (Recast). [1] The underlying case pertains to a claim by the Dutch Association of Stockholders (VEB) about a decrease in the value of BP shares due to alleged deceit by BP regarding to an oil leak in the Gulf of Mexico. The District Court and the Court of Appeal had held earlier that the Dutch court does not have jurisdiction, as BP has its registered office in the United Kingdom.
The Advocate General’s response was that the place where the investment account is held does not provide a sufficient basis for the international jurisdiction of the Member State concerned without additional circumstances. The Advocate General also discussed other circumstances (such as consumers being included within those represented, and a settlement from a third country) which, in his opinion, likewise did not constitute special circumstances.
The Supreme Court had also asked whether the rules of jurisdiction should be applied differently (in other words: less strictly) in cases in which the VEB institutes a class action. According to the Supreme Court, the effectiveness of the class action mechanism would be lost if the VEB had to lodge a claim at every place where damage occurred. In the Advocate General’s view, the rules of jurisdiction in Article 7(2) of the Brussels I Regulation (Recast) should not be applied differently even in the case of a class action by the VEB. Although the Advocate General acknowledged the risk identified by the Supreme Court, he took the view that the regime under the Regulation offered no other option. The Advocate General’s response on this point is in line with the CDC judgment (C-352/13, EU:C:2015:335), in which the Court of Justice did not accept that transfer and bundling of claims could affect the determination of international jurisdiction.
MLex has reported [1] that banks including BNP Paribas, Deutsche Bank, Goldman Sachs and Standard Chartered are being targeted by a new damages claim filed by Allianz Global Investors and 174 other claimants for alleged manipulation of the currency markets. The claimants’ complaint is based on two European Commission decisions of May 2019 in the FOREX scandal, in which Barclays, Citigroup, Royal Bank of Scotland, JPMorgan and the Japanese MUFG – formerly Bank of Tokyo-Mitsubishi UFJ – were called to account for their behaviour.
It has emerged from a Competition Appeal Tribunal decision that ABB has reached a settlement in a cartel damage case instituted by the UK National Grid over the power cable cartel. The UK energy network operator’s lawsuit followed a 2014 decision by the European Commission to impose a fine on 11 cable manufacturers because they formed a global cartel for almost ten years with effect from 1999. The claim is still being pursued against Prysmian, another cable manufacturer [1].
DAF, Iveco and other truck manufacturers have lost their appeal to the Court of Appeal of England and Wales against a judgment that deemed them legally bound by non-essential recitals of a 2016 EU cartel decision. The Court of Appeal ruled that the appeal of the truck manufacturers against an earlier decision by the Competition Appeal Tribunal should be dismissed. The judgment should be seen as a warning to companies combating damages actions arising from the European Commission’s antitrust decisions. [1]
Q4 saw the publication of a judgment from 23 September 2020 in which the Bundesgerichtshof ruled in favour of members of the German train tracks cartel. [1] The case was between unidentified cartel members and the transport operator for the city of Essen. The highest court referred the case back to appeal because it found that the appeal court had erred in applying the burden of proof, specifically by reversing the burden of proof when establishing whether the claimant had suffered damage. The judges held that there is a (rebuttable) presumption that prices affected by a cartel will be higher than those under normal market conditions, but that the burden of proof when assessing damage should not be reversed. This presumption is only one of the factors to be considered by the court.
This case is important because the highest court referred the case back, supplying detailed guidance on how to quantify damages, as well as helpful instructions and clarification on how to assess the defence that damage was passed on. The judges held that:
- A cartel member that wants to invoke the passing-on defence must present tangible evidence to support the contention that the damage was passed on, whereby the level of detail required depends on the specific circumstances of the case, in particular the complexity of the economic context.
- If – particularly in cases of scattered damages – there are a relatively small number of damages claims, which are by indirect cartel victims and difficult to quantify, the court should not accept the passing-on defence because that would involve the risk of the defendants being awarded unfair relief.
- BGH 23 September 2020, KZR 4/19 – OLG Düsseldorf LG Dortmund.[↩]
On 2 December 2020, Deutsche Bahn announced that its subsidiary DB Barnsdale AG had reached a settlement with British Airways for their role in the air cargo cartel. [1] Of the 11 defendant airlines from which it was seeking damages, this constitutes the seventh settlement reached by Deutsche Bahn. The amount of the settlement has not been disclosed.
In October 2020, the Regional Court of Hanover decided to ask the European Court of Justice for guidance on the scope of the decision of the European Commission regarding the truck cartel. [1] The Regional Court of Hanover is requesting clarification on the scope of vehicles (“products”) covered by the decision and on whether these also include specific types of vehicles, such as rubbish trucks and fire engines. The answer to that question will enable the court to determine the extent to which the European Commission’s decision is binding. The decision to refer was published on 14 October 2020 and stems from a damages lawsuit brought before the Regional Court of Hanover by a German municipality. According to the decision to refer, the literal text of the European Commission’s decision is unclear, leaving room for different interpretations. The court also refers to the content of an information request directed to the truck manufacturers by the European Commission in 2015, which seems to exclude information on “special vehicles”. According to the Regional Court of Hanover, the questions need to be clearly resolved at this stage as the answers will determine the success or failure of the case presently before the court and will also be important in future proceedings.
On 14 October 2020, Deutsche Bahn AG (DB) published a press release stating that it had reached a settlement with ThyssenKrupp GfT Gleistechnik GmbH and ThyssenKrupp Materials Services GmbH on damages for (possible) cartel agreements in the “private market rail cartel”. [1] The background to the settlement is a fine imposed in 2013 by the German competition authority, the Bundeskartellamt, on DB and various construction companies that carried out infrastructure projects for DB. ThyssenKrupp supplied, among other things, the materials for those projects. The details of the settlement have not been disclosed.
On 30 September 2020, the Regional Court of Dortmund awarded damages in a claim concerning the train tracks cartel. [1] This decision is interesting because the Regional Court quantified the (cartel) damage on the basis of its own findings. The court did so because it considered the costs of an expert to be disproportionate in relation to the (suspected) damage in question. The defendants had submitted expert advice themselves, but the Regional Court dismissed it as unreliable. In addition, according to the Regional Court, the conventional method of quantifying (cartel) damage did not apply here due to the special nature of the case. There was, for example, no market that could serve as a comparative market. Consequently, the Regional Court arrived at its own estimate. The price increase due to the cartel was estimated at ‘at least 15%’. The Regional Court based its quantification on factors that also apply in the determination of a cartel fine, such as the cartel’s duration, scope and degree of organisation. The estimated percentage was also felt to be of the same order of magnitude as the percentages to be found in well-known studies on average cartel-related price increases and other decisions of European District Courts. The amount of damages ultimately awarded was approximately € 62,000.
Mlex reported [1] on 20 April 2020 that LG Display had declared that it settled an antitrust claim in 2019 with the Japanese screen maker Iiyama in the aftermath of the liquid-crystal displays cartel. In 2010, the European Commission imposed a fine of EUR 649 million on LG Display, AU Optronics, Chimei Innolux, and others for having engaged in LCD display price-fixing from 2001 to 2006.
According to Mlex, on 5 May 2020, Daimler A.G. argued before the UK High Court in London that Wallenius Wilhelmsen’s data on the operation of the maritime car carriers cartel amounted to a “smoking gun”.[2] In those proceedings,[3] Daimler is claiming damages from various shipping companies for their role in the cartel[4] that we wrote about earlier in Q(2020-1). In its decision of 21 February 2018, the European Commission fined the shipping companies Mitsui O.S.K. Lines, Ltd, MOL (Europe Africa) Ltd, Nissan Motor Car Carrier Co., Ltd, Kawasaki Kisen Kaisha, Ltd, Nippon Yusen Kabushiki Kaisha and various companies affiliated with Wallenius Wilhelmsen Logistics AS, including EUKOR Car Carriers, inc. for € 395 million for their role in the cartel. The maritime car carriers are also under fire from UK car manufacturers in other procedures. For example, Jaguar Land Rover7 and Volvo8 have initiated separate proceedings against the members of the cartel pursuant to the European Commission’s decision.
On 19 June 2020, in the proceedings between Wolseley UK Limited and others v. Fiat Chrysler Automobiles N.V., CNH Industrial N.V., DAF Trucks N.V. and Daimler A.G.9 in the aftermath of the truck cartel, the Competition Appeal Tribunal ordered Daimler A.G. to provide “explanatory guidance” about the Daimler database it had provided to Wolseley in the context of disclosure. This explanatory guidance is furthermore meant to consist of Daimler releasing additional information to make it easier to understand the Daimler database, including the guidance that Daimler has already had to provide to claimants in other truck cartel proceedings.
- Mlex, LG Display settles with Iiyama over LCD cartel claim, 30 April 2020.[↩]
- Mlex, Wallenius Wilhelmsen data provides ‘smoking gun’ in car-shipper operations, Daimler tells UK judge[↩]
- The case is CL-2018-000572 Daimler AG v MOL (Europe Africa) Ltd and others.[↩]
- Commission Decision of 21 February 2018, Case AT.40009 — Maritime Car Carriers, 2018/C 314/09.[↩]
