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 The judgments are (as yet) unpublished.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
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 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 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 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.
