On 22 April 2021, another truck cartel Opinion was issued by an Advocate General at the Court of Justice. This time, it concerned the case RH (name kept anonymous) v. Volvo AB, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB and Volvo Group España SA (“Volvo”), which had been instituted before the Madrid Commercial Court.[1] Acting Advocate General J. Richard de la Tour considered a question of jurisdiction put by the Commercial Court. Volvo took the position that the Madrid Commercial Court did not have jurisdiction to handle the antitrust damages case because “the place where the harmful event occurred or may occur” from Article 7(2) of Brussels I Regulation Recast[2] was not within that Court’s district. According to Volvo, the place in question was the place where the competition arrangements for trucks were established (i.e. where the cartel agreements were made), and that was not in Spain. The claimant had asserted that the place where its registered office was located, within the district of Madrid, could also be considered as such.
The Advocate General concluded that the place where the affected market is located falls under Article 7(2) of Brussels I Regulation Recast. In addition, the Advocate General concluded that the place where the injured party’s registered office is located may also fall under Article 7(2), because this interpretation fosters effective legal protection under competition law. Otherwise, a company that had purchased trucks in various Member States would have to initiate (the same) antitrust damages proceedings in those various States, which would hardly be efficient. The Advocate General did emphasise, however, that Member States are free to give certain courts exclusive jurisdiction to hear antitrust damages cases.
[1] Advocate General J. Richard de la Tour, 22 April 2021, case C-30/20.
[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 judgments in civil and commercial matters.
On 15 April 2021, European Advocate General Giovanni Pitruzella issued an Opinion in one of the many truck cases,[1] specifically that of the Spanish company Sumal S.L. v. Mercedes Benz Trucks España S.L., a Daimler subsidiary. Although the Spanish truck company was not mentioned in the European Commission’s decision of 19 July 2016 in which a fine was imposed on Daimler, Suma S.L. took the view that liability towards it could also be imputed because Mercedes Benz Trucks España S.L. formed a single economic unit with the parent company.[2] It is a generally accepted doctrine that a parent company can be liable for anti-competitive conduct by a subsidiary if they together form an ‘economic unit’. This is termed ‘bottom-up liability’. Advocate General Pitruzzella concluded that, if such an economic unit exists and the subsidiary contributed substantially to the infringement, ‘top-down liability’ is also possible.
[1] Advocate General G. Pitruzella, 15 April 2021, case C-882/19.
[2] See here for all European Commission documents in the case AT.39824 Trucks v. Daimler et al..
After commencing investigations against Facebook, Inc. in January 2021, the Bundeskartellamt reported in press releases on 18 May and 25 May 2021 that it had initiated proceedings against Amazon, Inc. and Google, Inc., respectively, based on the new rules for large digital companies.[1]
The 10th amendment to the German Competition Act (GWB Digitalisation Act) came into force in January 2021. A key new provision set forth in Section 19a GWB enables the authority to intervene earlier and more effectively, in particular against the practices of large digital companies. In a two-step procedure, the Bundeskartellamt can prohibit companies which are of paramount significance for competition across markets from engaging in anti-competitive practices.
In the case against Amazon, the Bundeskartellamt stated that they were examining whether Amazon was of such paramount significance. An ecosystem which extends across various markets and thus constitutes an almost unchallengeable position of economic power is particularly characteristic in this respect. According to the president of the Bundeskartellamt, this could apply to Amazon with its online marketplaces and many others, above all digital offers.
Similar proceedings have been initiated against Google Germany GmbH, Hamburg, Google Ireland Ltd., Dublin, Ireland, and Alphabet Inc., Mountain View, USA. Due to the large number of digital services offered by Google, such as the Google search engine, YouTube, Google Maps, the Android operating system or the Chrome browser, the company could be considered to be of paramount significance for competition across markets. A second set of proceedings will undertake an in-depth analysis of Google’s data processing terms, as Google’s business model relies to a very large extent on processing data relating to its users. The main question is whether users have sufficient choice as to how Google will use their data.
On 21 June 2021, the Bundeskartellamt also initiated such an inquiry into Apple to assess whether Apple’s new privacy policy, its App Store rules, and the pre-installation of its apps on iPhones require intervention. The assessment will examine the extensive integration of the
[1] Proceedings against Amazon based on new rules for large digital companies (Section 19a GWB); Proceeding against Google based on new rules for large digital players (Section 19a GWB) – Bundeskartellamt examines Google’s significance for competition across markets and its data processing terms; Apple faces German antitrust probe under country’s new tech rules.
On 13 April 2021, the Federal Court of Justice rendered another antitrust damages judgment, this time regarding the truck cartel.[1] Daimler initiated the appeal in cassation after it had lost before Schleswig-Holstein Higher Regional Court in a case against an (anonymised) freight forwarder that claimed damages from the manufacturer for nine trucks it had purchased from Daimler and DAF. Daimler, along with DAF, Volvo-Renault, MAN and Iveco, was fined in 2016 for infringing agreements on prices and introduction of emission standards in the period 1997-2011. In 2017, Scania was also fined for these infringements. The lower courts had therefore ruled that the infringing acts caused damage to the anonymous claimant and had ordered Daimler to compensate it. In April 2021, the Federal Court of Justice ruled that Schleswig-Holstein Higher Regional Court had correctly held that the cartel was likely to have caused damage due to a price increase, but the Higher Regional Court had failed to take sufficient account of the fact that the price increases could (partly) be passed on to customers of the injured party. Moreover, Daimler and DAF had submitted their own economic investigations that concluded that no price increases had been observed. According to the Federal Court of Justice, those investigations were insufficiently taken into account in the assessment. The Federal Court of Justice referred the case back to the Schleswig-Holstein Higher Regional Court for further assessment.
The railway construction cartel also brought about three judgments of the German Federal Court of Justice (Bundesgerichtshof) of 13 April 2021. These concerned antitrust damages cases initiated by two (anonymous) regional transport operators from Dortmund, Duisburg and Cologne against (anonymous) railway construction companies.[1] The lower courts ruled in both cases that the price cartel created a suspicion of damage, that the cartelists had not sufficiently refuted that suspicion and therefore that they must compensate the damage. The Federal Court of Justice held that this was an interpretation of the burden of proof rule that is not in line with previous case law from the highest court. The rule that damage is suspected in a cartel case is a rule based on experience, but it does not automatically mean that the burden of proof is reversed. The Federal Court of Justice found: “Taking such a principle of experience into account does not, however, lead to reversal of the burden of proof. The principle of experience in question should rather be taken into account in the context of the general assessment of all circumstances that argue in favour of or against the occurrence of the damage“. Consequently, the rule of suspicion of damage may only alleviate the claimants’ obligation to provide substantiation, but cannot lead to a different division of the burden of proof. The Federal Court of Justice therefore referred the cases back to the relevant appellate courts, as the Federal Courts of Justice cannot rule on the facts and circumstances. These judgments were only published on 19 July 2021 and 27 August 2021[2] and may have consequences for all previous judgments rendered by lower courts in relation to the railway construction cartel.
[1] Federal Court of Justice 13 April 2021, case KZR 98/18 and Federal Court of Justice 13 April 2021, case KZR 95/18 and Federal Court of Justice 13 April 2021, case KZR 40/19.
[2] “German transport operators’ train-tracks cartel damages suits sent back for review”, MLex 19 July 2021; “Cologne mass-transit operator’s train-tracks cartel damage lawsuit referred back to lower court”, MLex 27 August 2021.
On 3 February 2021, Dortmund Regional Court (Landgericht) ruled that a transport association from North Rhine-Westphalia (its name has been anonymised) is entitled to compensation for damage caused by a railway construction cartel.[1] This association had acquired companies that paid too much for railway superstructure materials as a result of a cartel. On 18 July 2013, the German competition authority, the Bundeskartellamt, imposed a fine of EUR 97.64 million on a large number of producers of railway building materials (also anonymised). According to the penalty decision, the cartelists made price, quota and customer protection agreements on the private market in Germany from 2001 to 2011. The Regional Court found that it may be suspected that all tenders for the rail materials in question fell under the cartel during that period. With regard to the damage, Dortmund Regional Court referred to a general study by Oxera from 2009[2] which shows that 93% of price cartel cases results in a price increase. Given the duration of the cartel (10 years) and the size of the cartel (90% of the market participated), damage could be suspected in this case as well. Because the claimants had taken over the damage-suffering companies, they could lodge the claims for damages. The cartelists provided insufficient proof to the contrary and must therefore compensate the damage. The court assumed a prohibited price increase of 10%. Other claims were rejected because although another company had purchased material from the defendants, this company had not indicated why these transactions fell under the cartel.
[1] Dortmund Regional Court, 3 February 2021, ECLI:NLDE:LGDO:2021:0203.8O116.14KART.00.
[2] Oxera, 2009: Quantifying Antitrust Damages: Towards Non-Binding Guidance for Courts.
On 23 June 2021, in an action for damages with regard to the lift cartel, Rotterdam District Court ruled that the possibility of damage is plausible for 41 housing corporations represented by the claimant Stichting De Glazen Lift (DGL).[1] In its interlocutory judgment of 29 May 2019, the District Court gave DGL the opportunity to enter documents into evidence showing that during the period of the cartel each member of the foundation had purchased at least one lift from the cartelists or had had at least one lift maintained or modernised by the cartelists.[2] In this judgment, the District Court confirms that evidence of a single transaction is sufficient to (be able to) make the possibility of damage plausible and to achieve the threshold for referral to the determination of damages, at which stage the scope of the damage can be addressed.[3] DGL has sufficiently done so by submitting the additional documents; the District Court rejected the cartelists’ defences against these.
The District Court then discussed the pass-on defence put forward by the cartelists, with regard to which the District Court had ruled in the interlocutory judgment that it would be up to them to substantiate this defence and, if necessary, prove it, for which purpose DGL should, however, offer sufficient starting points by submitting documents unavailable to Kone and Otis.[4] Kone and Otis argued that DGL did so insufficiently, that they are therefore unable to substantiate the passing on, and that DGL’s claims should therefore be denied. The District Court agreed with Kone and Otis that DGL submitted a very limited number of documents, but the District Court nevertheless did not proceed to deny the claims because, based on the documents, the District Court in any event deemed it plausible that the participants did not or could not pass on all additional costs, so that it was nevertheless plausible that the members suffered damage.[5]
The District Court issued a declaratory judgment to the effect that Kone and Otis are jointly and severally liable for the damage suffered by the participants and refers the case to follow-up proceedings for the determination of damages.
[1] Rotterdam District Court 23 June 2021, ECLI:NL:RBROT:2021:6635.
[2] Para. 2.1.
[3] Para. 2.6.
[4] Paras. 2.1, 2.11
[5] Para. 2.13.
On 12 May 2021, Amsterdam District Court rendered a decision in the first wave of truck cartel cases that will have pleased the claimants in particular.[1] Claimants in this first wave of cases include Carlsberg Deutschland GmbH, Stichting Trucks Cartel Compensation and CDC (Retail Cartel Damage Claims S.A.). In this judgment, the District Court:
- rejected the truck manufacturers’ position that the facts as set out in the decision of the European Commission (“Commission”) were not entirely binding on the cartelists. Also referring to the Otis judgment[2] of the CJEU, the District Court considered in this respect that it was bound “to limit itself to the two infringing acts established by the Commission in the operative part of the Decision, as the Claimants base their claim for damages due to unlawful act on that Decision.“[3];
- rejected the truck manufacturers’ defence that the collusive relationship of the truck manufacturers essentially only consisted of incidentally exchanging innocuous information about the increase of gross list prices and net prices, but that, besides that, there was no question of making agreements on this subject or implementing such agreements[4];
- rejected the truck manufacturers’ decision that leased trucks were excluded from the Commission’s decision[5];
- ruled that it follows from the expert opinion of Prof. J.E. Harrington Jr. and Prof. M.P. Schinkel, which was entered into evidence by the claimants, that artificial gross list price increases led to a net cartel surcharge on the net final prices paid by customers and that the report is conclusive and convincing;[6]
- thus rejecting the truck manufacturers’ defence that it is ruled out that the infringement established by the Commission resulted or could have resulted in damage to the customers. The District Court held that “this does not diminish the fact that it will still have to be assessed per Claimant whether the threshold for referral to the follow-up proceedings for the determination of damages has been met“[7]. For this, the possibility of damage must be made plausible.
In addition, the District Court referred the cases to a case management hearing of 27 May 2021, at which time the District Court will determine the next steps in this first wave of cases.
[1] Amsterdam District Court 12 May 2021, ECLI:NL:RBAMS:2021:2391.
[2] CJEU 6 November 2012, C-199/11 ECLI:EU:C:2012:684.
[3] Amsterdam District Court 12 May 2021, ECLI:NL:RBAMS:2021:2391, para. 3.13
[4] Paras. 3.19, 3.20
[5] Para. 3.28.
[6] Paras. 3.62, 3.63
[7] Paras. 3.68, 3.69
On 30 June 2021, Amsterdam District Court rendered an interlocutory judgment in the case between the foundation Data Privacy Stichting and Facebook.[1] The underlying dispute concerns the question of whether Facebook has violated the privacy of its users.
In this interlocutory judgment the District Court ruled on its jurisdiction, the admissibility of Data Privacy Stichting’s claim and the applicable law.
With regard to the jurisdiction of the District Court, the District Court assumed jurisdiction on various grounds. Firstly, Facebook has an establishment in the Netherlands (the “anchor defendant”) which performs relevant activities with regard to the revenue model (personalised advertisements) of Facebook. The claims against the various Facebook entities are therefore so closely connected that the District Court has jurisdiction to rule on all claims simultaneously (Article 8(1) Brussels I Regulation Recast). Secondly, the damage is suffered by the individuals represented by the foundation. This damage is suffered in the Netherlands. Based on “Erfolgsort”, the Dutch court therefore has jurisdiction to rule on this damage (Article 7(2) Brussels I Regulation Recast). Thirdly, the District Court ruled that it had jurisdiction based on the GDPR. Facebook has an establishment in the Netherlands and the individuals represented by the foundation reside in the Netherlands. Both facts are grounds for jurisdiction (Article 79 GDPR). Importantly, the District Court concluded that the rules on jurisdiction from the Brussels I Regulation Recast and the GDPR were not mutually exclusive.
Furthermore, regarding the admissibility of Data Privacy Stichting’s claim, the District Court ruled that the claimed unlawful activities are the same for all individuals represented by Data Privacy Stichting. The interests of all individuals can therefore be bundled. Furthermore, the fact that Data Privacy Stichting is an ad hoc foundation, funded by an American funder, is no obstacle. The independence and quality of the board of the foundation are guaranteed. Lastly, the GDPR (Article 80) forms no obstacle to representation of individuals on an opt-out basis.
As regards the applicable law, the District Court ruled that the GDPR (and its predecessor) were applicable, based on the Dutch establishment of Facebook. Regarding Dutch law on unlawful act, the Rome II Regulation establishes applicable law in the place where the damage occurs. As the individuals represented by the foundation suffer damage in the Netherlands, Dutch law applies.
[1] https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2021:3307.
Clara Wichmann (a foundation) et al. held the State liable for not compensating women for costs of contraception. On 2 June 2021, The Hague District Court[1], in a judgment that pertained solely to the admissibility of the case, appointed Wichmann as the exclusive representative.[2] The District Court ruled that the requirements of Article 3:305 DCC have been met because the foundation pursues a collective interest (an equal society for, inter alia, men and women) and an idealistic purpose without a claim for damages (so that the admissibility requirements from Article 3:305(2) DCC need not be met). The District Court already announced that it would declare the individual claimants not to have a cause of action in the final judgment, because they had lodged their claims (only) to declare their support.
[1] Interlocutory judgment The Hague District Court 2 June 2021, case number / cause-list number: C/09/588600 /HAZA 20-181.
[2] Incidentally, the case was unsuccessful for Clara Wichmann et al., as evidenced by the judgment of The Hague District Court of 6 October 2021.
