On 19 July 2016, the European Commission (“Commission”) adopted a settlement decision imposing a fine of EUR 2.93 billion in total on MAN, Volvo/Renault, Daimler, Iveco and DAF (“Settlement Decision”) for their participation in the European Trucks Cartel from 17 January 1997 to 18 January 2011 (“LKW-Kartell”). On 27 September 2017, the Commission also imposed a fine of EUR 880 million on the non-settling undertaking Scania for its participation in the same infringement (“Scania Decision”). The truck manufacturers were found to have coordinated (i) the gross list prices of medium and heavy trucks, (ii) the timing for the introduction of emission technologies, and (iii) the passing on to customers of the costs for such emission technologies, all in breach of Art. 101 TFEU. On 22 August 2019, the company Transfrugal – Transportes de Frutas de Portugal S.A. (“Transfrugal” or “Claimant”) filed an action for damages (“Action”) against DAF Trucks N.V. (“Defendant”) before the Competition, Regulation and Supervision Court of Santarém in Portugal (“Court”).
Indeed, on 23 March 2008, and hence during the infringement period, the Defendant sold a rigid truck to Evicar, which had been its sole importer in Portugal. In 2018, the Claimant acquired the vehicle from Evicar for a payment of EUR 86.859,11. To finance the acquisition, the Claimant entered into a leasing agreement with BPN Crédito – Instituição Financeira de Crédito. In this agreement, Evicar was identified as the supplier of the equipment for a contractual value of EUR 86.859,11.
Transfrugal argued before the Court that, as a result of the Trucks Cartel, the price paid for the truck was at least 15.4 percent above the price that would have been applied if that vehicle had been sold under competitive conditions. On the basis of an economic expert’s report, the Claimant sought compensation in the amount of EUR 12.904,02 in relation to the truck.
Standard of proof on the truck’s acquisition
While highlighting the evidentiary difficulty for the Claimant to substantiate a claim arising from a secret infringement that took place a long time ago, the Court considered that there is no obligation for the Claimant to preserve transactional documents such as invoices to support the relevant purchases. The Court explained that proof of ownership through a leasing agreement and/or other relevant administrative documents in the name of the Claimant (e.g. registration certificate) constitute sufficient evidence of the existence of the transaction.
Starting point of the limitation period
The Defendant argued that the claim was time-barred under the subjective three-year limitation period provided for in Article 498(1) of the Portuguese Civil Code and that the five-year limitation period provided for in Directive 2014/104 ( “Damage Directive”) did not apply to the claim.
On the basis of the CJEU’s judgment in DAF Trucks, the Court held that the five-year limitation period under the Damages Directive was applicable to the claim and that the claim was therefore not time-barred at the time the Action was brought.
According to the Court, in line with the CJEU’s judgment in Cogeco, the three-year limitation period could not have started to run before the date of publication of the summary of the Commission’s 2016 decision in the Official Journal of the European Union, i.e. 6 April 2017, when essential information about the infringement became public knowledge. When the Damages Directive was transposed into Portuguese law on 5 June 2018, including the new limitation provision, the three-year limitation period under the old civil law provision had not yet expired. Therefore, from that moment on, the new limitation rule was applicable ratione temporis in relation to Transfrugal’s claim.
Presumption of harm and causality
The Court first recalled that a breach of law, including the identity of the infringer, the existence of harm, and the causal link, are essential elements that the injured party must have at his disposal to substantiate a claim for damages.
With a direct reference to DAF LKW, the Court found in casu Article 17(2) of the Damage Directive on the rebuttable presumption of harm caused by cartels, which had been considered by the CJEU as substantive in nature, not applicable ratio temporis. The Court stated that, as the Trucks Cartel ceased long before the implementation of the Directive, the applicable rules on harm and causation are those contained in Article 483 of the Portuguese Civil Code on non-contractual liability for damages.
However, the Court specified that cartels typically lead to a price increase or prevent a price decrease that would otherwise occur. Therefore, the Court stated that, notwithstanding the inapplicability of Article 17(2) of the Damage Directive to the present case, the harm resulting from the Trucks Cartel can and should be presumed. In that regard, the Court referred to recital 47 of the Damage Directive, which reads as follows: “To remedy the information asymmetry and some of the difficulties associated with quantifying harm in competition law cases and to ensure the effectiveness of claims for damages, it is appropriate to presume that cartel infringements result in harm, in particular via an effect on prices”.
Effects on net prices
In relation to the impact of a gross list price increase on net prices, the Court first underlined that net price effects, in the case of cartel infringement by object, had already been recognized by the CJEU in Keramag. Further, by quoting paragraph 311 of the judgment by the EU General Court of 2 February 2022, case T-799/17 (e.g., in the action for annulment against the Scania Decision), the Court stated that a demonstration of concrete effects on the market of horizontal price fixing is redundant, because the negative effects on price and quality of the goods are very likely. The Court then concluded that the pass-on of price increases to the manufacturer’s distribution chain is a“widespread business practice”.
In reviewing the expert reports submitted by the Defendant, the Court stated that the reports failed to prove either that the artificial overcharge was absorbed by the intermediary Evicar or that the Claimant passed on this additional cost to its own customers. The Defendant’s assumptions, based on econometrics, were insufficient to prove the non-existence of overcharges, which should have been supported by a comparative and descriptive analysis using data that the Defendant should have had available.
On the basis of the report of the Claimant’s economic expert, the Court concluded that the infringement resulted in an artificial overcharge for the Claimant of 15.4% of the net price of the truck.
This judgment presents a conform interpretation of national law with EU law, which is particularly welcome for the timely obtainment of fair compensation for damage suffered by an infringement of EU competition law. It ensures the effective application of the horizontal direct effect of Article 101 TFEU when interpreting pre- and post-Directive national rules governing the enforcement of damages claims.
By Vasil Savov, Théo Mayer and Martin Seegers