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 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
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.
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 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 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 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 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 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 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
