On 23 September 2020, the highest court of Germany, the Bündesgerichtshof (“BGH“), annulled two interim judgments stating that the reasons given did not justify the finding that the cartel members concerned were in principle liable for the damages suffered. The annulment decisions were published in Q1 2021 and concern interim judgments of the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf.
- The interim judgement of the Higher Regional Court of Stuttgart was rendered in a damages lawsuit brought by two construction companies against truck manufacturer Daimler for its participation in the truck cartel.[1] In this case, the Higher Regional Court had ruled that Daimler was in principle liable for the damages claimed by the claimants. The BGH considered that although the court was right in presuming that a cartel leads to an increase of the market prices of the purchased goods or services and therefore to damage, such presumption must be made on a case-by-case basis and taking into account the specific circumstances of the cartel. According to the BGH, the Higher Regional Court had not done so in full. The BGH was therefore concerned that the Higher Regional Court had reversed the burden of proof and had required the cartel member to proof that no damage had been suffered – thus placing an excessive burden of proof on the defendants.
- The interim judgment of the Higher Regional Court of Düsseldorf was rendered in a damages lawsuit brought against Shreck-Mieves, Balfour Beatty Rail and ThyssenKrupp GfT Gleistechnik because of their participation in the train-tracks cartel.[2] It found that it could be assumed that the claimants had suffered damage. The BGH annulled this decision for similar reasons as it did the aforementioned decision of the Higher Regional Court of Stuttgart. The BGH found also in this case that the Higher Regional Court had not considered all specific circumstances of the case and that there was a risk that the court had reversed the burden of proof. It made it clear that such reversal would be an error in law.
The two cases have been referred back to the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf, respectively, to be examined again.
[1] OLG Stuttgart Decision of 4 April 2019, 2 U 101/18.
[2] OLG Düsseldorf Decision of 23 January 2019, VI-U (Kart) 17/17.
A ruling of the Regional Court of Bonn dated 2 December 2020 but disclosed in Q1 2021, has demonstrated that the Bundeskartellamt has a margin of discretion on how it conducts an investigation.[1] The ruling concerned a damages claim brought by pesticides wholesaler BayWa, which company was identified by the Bundeskartellamt as a key member of a cartel amongst wholesalers of plant-protection products. After the Bundeskartellamt had received an anonymous tip-off about the cartel, it contacted (only) three of the possible cartel members and provided them with the opportunity to cooperate under the leniency programme. These companies subsequently cooperated and provided the Bundeskartellamt with information based on which it could make its case against the (other) wholesalers, among which was BayWa. BayWa argued that the Bundeskartellamt had acted discriminatory by contacting only some of the suspected cartel members and not all of them and therefore claimed damages. The Regional Court of Bonn did not agree and stated that this investigative method did not breach any official duty or law by which the Bundeskartellamt is bound. Moreover, the court found that Bayway had not sufficiently shown that a causal link existed between the contested investigation method and the damages claimed.[2]
[1] Landgericht Bonn 2 December 2020, 1 O 201-20, ECLI:DE:LGBN:2020:1O201.20.00.
[2] See also the press release of the Bundeskartellamt, ‘Amtshaftungsklage der BayWa gegen das Bundeskartellamt abgewiesen’, 2 December 2020.
Mobile phone SIM card maker Gemalto is trying to claim damages from Infineon Technologies and Renesas Electronics for their participation in the smartcard chip cartel, and for which they were fined by the EC in 2014. On 31 March, a judge of the High Court ordered that the defence of the cartel members that the claim is time-barred should be decided on first as that would save time and costs. The defendants have argued that the limitation period started to run as of the second request for information from the EC to the cartel members in 2012. The names of the (suspected) cartel members were included in the request and that should have been a trigger for Gemalto to investigate whether it had a cause of action and start litigation, according to the defendants. Gemalto stated in its defence that at that stage, it could only be aware of the fact that these parties were suspected of forming a cartel and an investigation was ongoing, not that a cartel existed. The case will proceed only if and after it will be proven that the claim is not time-barred.[1]
[1] The case reference is CP-2019-000027 Gemalto NV and others v. Infineon Technologies AG and others.
On 18 March 2021, the High Court issued a ruling stating that it does not grant Allianz Global Investors and others permission to appeal a High Court ruling. In that ruling the High Court had stated that cartel members Barclays, UBS and other banks can argue that the damage allegedly suffered by the claimant investment funds as a result of the foreign-exchange markets cartel were mitigated because the damage had been passed on to investors. The main reasons for not allowing the appeal was because it would not be efficient in terms of case management.[1] The court stated that the appeal at this time might delay the case, while it would be more efficient for there to be a (potential) appeal on all issues at the end of the trial. The banks were fined €1.07 billion by the European Commission (EC) in 2019 for participating in a foreign exchange spot trading cartel between 2007 and 2013.[2]
[1] According to Mlex, ‘Allianz Global Investors, others refused UK appeal bid over ‘pass-on’ forex cartel ruling, 18 March 2021.
[2] European Commission press release of 16 May 2019, Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan, and MFUG €1.07 billion for participating in foreign exchange spot trading cartel.
On 4 March 2021, Iveco was ordered by the Competition Appeal Tribunal to provide data disclosure in a damages lawsuit including claimants energy group Suez, waste-management group Veolia and industrial-product supplier Wolseley (“VSW proceedings”). The VSW proceedings concern the truck cartel and are due to commence in late 2023 at the earliest. The application related to data from dealers through which Iveco sold trucks, both Iveco-owned dealers and independent dealers. The tribunal considered these data significant and relevant to the issues in the case at hand, at least in so far as necessary to determine the price paid for the trucks to the dealers by end customers and its breakdown (for example, whether discounts were applied or not). However, Iveco has no control over the records of independent dealers and the tribunal considered that effecting such disclosure would be burdensome and costly, as well as impracticable. The tribunal therefore urged the parties to reach an agreement on how to provide disclosure to the extent reasonably necessary for the information to assist in determining the net end customer price and to be made available at proportionate cost. This resulted in a compromise, namely that the parties were to agree on a selection of one Iveco-owned dealer in each of France and Germany (out of a total of 10 dealers) and have those dealers provide general descriptions on how trucks were priced, how and at what level the price decisions were taken and on what information such decisions were based. Furthermore, Iveco was to conduct proportionate and reasonable searches for and disclose and provide inspection of certain data/documents of the relevant Iveco-owned dealers in relation to domestic sales in the cartel period.[1]
[1] Competition Appeal Tribunal 4 March 2021, [2021] CAT 6, 1292/5/7/18/ (T).
On 5 March 2021, the UK Court of Appeal ruled that DAF will not be allowed to challenge a ruling from the Competition Appeal Tribunal (“CAT”) on a case in which DAF disputed the validity of the litigation funding arrangements of two mass follow-on damages claims based on the truck cartel decision and argued that the claims should therefore be denied. In general terms, the issue at hand was whether a litigation funding agreement entered into with claimants by third parties who play no part in the conduct of the proceedings, but whose compensation is fixed as a share of the damages recovered by the client – which party is normally the funder – are “damages-based agreements” (“DBAs”) within the meaning of the relevant legislation which regulates such agreements (Section 58AA of CLSA 1990). If such agreements are considered DBAs, the likely consequence is that they will be unenforceable, unless the agreements comply with particular conditions set out in Section 58AA. The CAT did not concur with DAF on this, and now the Court of Appeal has ruled, after careful consideration of the relevant legislation and case law, that the CAT did not err in law in its interpretation of the relevant provisions. DAF’s application for judicial review on the merits was therefore rejected.[1]
[1] Court of Appeal, appeal against the Competition Appeal Tribunal’s ruling, 5 March 2021, [2021] EWCA Civ 200.
On 4 March 2021, another data disclosure-related instruction was issued by the CAT in the context of the truck cartel, during a hearing in proceedings between energy group Suez and truck manufacturer Iveco. The tribunal instructed the parties to consider and carry out what would be the “most practicable and useful disclosure” and urged that the parties should strive for a “pragmatic approach” which would enable data disclosure at “proportionate costs”. If the parties are unable to resolve the matter, the tribunal stated it would deal with the claimants’ application for disclosure.[1]
[1] 1292/5/7/18 Suez Groupe SAS and Others v Fiat Chrysler Automobiles N.V. and Others;
1293/5/7/18 Veolia Environnement S.A. and Others v Fiat Chrysler Automobiles N.V. and Others;
1294/5/7/18 Wolseley UK Limited and Others v Fiat Chrysler Automobiles N.V. and Others.
On 25 February 2021, the UK High Court ruled on an application by banks including Barclays, UBS and Citibank to put forward “pass-on” arguments in order to defend themselves against damages claims brought by 175 claimants, including investment funds Allianz, Pimco and Brevan Howard.[1] The claims rely on two EC decisions released in 2019 in which several banks were fined for collusive behaviour regarding forex manipulation. The banks requested certain pass-on issues to be advanced and heard during the proceedings, against which the claimants protested. This case is not a typical case of pass-on; pass-on is said to occur when an investor redeems or withdraws its investment. The banks wanted to argue in the requested proceedings that damage suffered by the investment funds was passed on to investors who cashed out on assets with reduced value, and who could thus claim such damage themselves. The claimants argued that the investors themselves do not have a cause of action, which is why the defendant’s argument of pass-on mitigation has no real prospect of success and should be struck out. The claimants also noted that the pass-on defence of the defendants could lead to wide-ranging disclosure in respect of a bare assertion. The High Court concurred with the defendants, however, in considering that the alleged pass-on cannot be shown to be impossible or bound in law to fail and should therefore be admitted to the case.
[1] UK High Court, [2012] EWHC 399 (Comm), Case No: CL-2018-000840.
On 8 January 2021 Midden-Nederland District Court ruled in the case of Stop Online Shaming. The case concerns blacklists of doctors who, according to the defendant, have made mistakes in medical procedures. Interestingly, the case concerns preliminary relief proceedings (in Dutch: kort geding). The writ of summons was published on 12 November 2020, with (digital) hearings on 24 November 2020 and 23 December 2020 and judgment on 8 January 2021 – less than two months in total. The proceedings would have been completed even sooner, if the defendants would not have challenged one of the judges.
Class representative Liz Williams filed a claim against data broker Experian in February 2021. According to Williams, Experian holds information on about 46 million individuals in England and Wales. The claim aimed to obtain £750 damages for a total of £34 billion.
