Trucks
European Trucks Manufacturers Cartel
On 19 July 2016, five European truck manufacturers were fined € 2.93 billion by the European Commission. According to the Commission, MAN, Volvo / Renault, Daimler, Iveco and DAF participated in unlawful cartel activities including fixing gross list prices for trucks, coordinating the timing of the introduction of new emission technologies, and the passing-on of those costs to customers. The undertakings reached a settlement with the Commission, thereby admitting their guilt for the infringement. A settlement decision was therefore adopted on 19 July 2016. No action for annulment has been brought against this decision, its 30 pages non-confidential version was published on the Commission’s website on 30 June 2020.
On 27 September 2017, the Commission also imposed a fine of EUR 880 million on Scania for its participation in the same infringement. As Scania did not wish to settle with the Commission, the administrative proceedings against it had continued, leading to the adoption of a full fining decision against Scania. On 11 December 2017, Scania brought an action for annulment before the General Court of the European Union against the decision of 27 September 2017. By judgment of 2 February 2022, the General Court dismissed Scania’s action in its entirety, clarifying the legality of a “hybrid” cartel procedure and the concept of a “single and continuous infringement” common to all cartel participants. On 8 April 2022, Scania appealed to the Court of Justice of the European Union (CJEU) against the judgment of the General Court.
The Trucks Cartel lasted over 14 years, from 1997 to 2011, which is a very significant period compared to the average duration of cartels of between 5 to 7 years. The cartel covered the whole of the European Economic Area (EEA) and concerned medium (between 6 and 16 tonnes) and heavy (over 16 tonnes) trucks. In a recent judgment of 1 August 2022, in case C-588/20, Daimler, the Court of Justice of the European Union concluded that the Trucks Decision relates to the sale of all medium trucks and heavy trucks, both rigid trucks and tractor units, including all special and standard equipment and models as well as all factory-fitted options offered by the respective manufacturers that participated in the Cartel. Apart from trucks for military use, nothing in that decision suggests that specialised trucks are not among the products covered by the cartel.
In each of the two press releases on the adoption of the fining decisions, the Commission expressly mentioned the right of any person who has been affected by the infringement to enforce his or her rights to obtain damages before the national courts. In line with the jurisprudence of the CJEU, any company that bought (rented or leased) medium or heavy-duty trucks during this period has the right to claim compensation from the truck manufacturers.
Actions for damages initiated by CDC in Amsterdam
On 13 July 2017, CDC filed a first action for damages against MAN, Volvo / Renault, Daimler, Iveco and DAF before the Amsterdam District Court in the Netherlands. This action covers all truck brands, including Scania. In this context, CDC is pursuing claims from more than 700 large companies and SMEs across Europe for a total of approximately 60,000 trucks. In support of its claim, CDC has submitted almost 200,000 documents.
Since its filing, CDC’s action has been followed by a multitude of other actions brought by several groups of claimants also seeking compensation before the District Court of Amsterdam. However, CDC’s action is considered to be the lead action in the Netherlands. The defendants have explicitly acknowledged as a benchmark the quality of the preparatory work done by CDC, which has documented 99.7% of the trucks for which compensation is sought to a high degree of acuity. In comparison, the estimated average acuity of the data and documents submitted by other claimants is below 10%.
Several key judgments favorable to CDC
On 15 May 2019, CDC obtained a first major judgment in the Truck Cartel Case. CDC’s press release regarding this judgment can be found here. With this judgment, the Amsterdam District Court confirmed the merits of the claims brought by CDC and endorsed CDC’s arguments that the defendants’ liability resulted from their participation in a single and continuous infringement. Also, the Amsterdam District Court confirmed the viability, and per se the effectiveness, of the bundling of damages claims by way of assignment as conducted by CDC. Importantly, it was also made clear in this judgment that special rules do not apply to specialised entities such as CDC, nor should they be subject to a higher burden of proof than any other person harmed by a competition law infringement.
On 12 May 2021, the Amsterdam District Court ruled again in favour of CDC in a landmark judgment, confirming the binding effect of the entire European Commission decision, the scope and nature of the Trucks Cartel and the likelihood of damage being caused. CDC’s press release regarding this judgment can be found here. In particular, CDC had the judge endorse its core argument that the defendants cannot contest, in the context of a damages procedure, the facts that they have previously admitted in the administrative settlement procedure. Also, the Dutch judge accepted CDC’s argument that it is generally accepted that a cartel can have continuous negative effects after the cartel has ended (“after cartel effects” or “lingering effects”). Finally, with regard to the likelihood of damage, entire passages of the reasoning of CDC’s economic experts are included in the judgment, thus confirming CDC’s central role in the entire Dutch litigation against the Trucks Manufacturers Cartel.
On 27 July 2022, the Amsterdam District Court issued a third important interim judgment, fully upholding the arguments raised by CDC. The Court confirmed CDC’s standing as a litigation vehicle, the uniform application of Dutch law to all of CDC’s claims, and the validity of CDC’s assignment agreements. The press release regarding this judgment can be found here. Indeed, the judgment expressly approved the “assignment model” operated by CDC, which allows for the efficient aggregation of damages claims of several victims of the same cartel in a single action. The Court then refuted all technical objections raised by the defendants against the validity of the assignments, including arguments based on German law (“Rechtsdienstleistungsgesetz”) and English law (“Champerty and Maintenance”). Finally, the court also ruled that the claims for damages are governed solely by Dutch law, even if the purchase of the truck took place in another member state. In CDC’s view, this approach will considerably facilitate the process of obtaining effective compensation and will contribute to a more expeditious and efficient conduct of the proceedings.
In a second lawsuit against the Trucks Manufacturers Cartel filed on 2 February 2020, CDC is claiming damages before the Amsterdam District Court in relation to claims previously assigned by approximately 400 transport and logistics companies for a total of approximately 30,000 trucks. The action is directed not only against the defendants in CDC’s first action, but also against Daimler Trucks and Scania. Although all the above-mentioned judgments were rendered in the first of the two proceedings, we expect that they will also serve as a model for the second proceedings, which are being conducted with the same level of rigour, building on all the positive lessons learned from the first litigation.