On 13 June 2022, the Federal Court of Justice (Bundesgerichtshof) held that the claims assignment model (Sammelklage-Inkasso) is admissible for Swiss purchasers in the so-called Diesel scandal (see the Bundesgerichtshof’s press release of the same day). The decision is a further step after the landmark AirDeal judgment last year, in which the Bundesgerichtshof fundamentally acknowledged the collective opt-in assignment model, i.e. the transfer of claims for damages of numerous victims of the same infringement to a specialised third party for the purpose of bundling and joint enforcement of all claims. This approach from a procedural economy perspective has become increasingly important all over Europe in recent years, especially in competition law cases. In its Diesel emission case, the Bundesgerichtshof now confirms that the model is also open to purchasers from Switzerland.
Trucks cartel: AG Szpunar clarifies the application of Article 5 of the EU Damages Directive to documents to be created ex novo
On April 7, 2022, AG Szpunar delivered its opinion in the context of a request for a preliminary ruling made by the Commercial Court 7 of Barcelona to the CJEU concerning, i.a, the interpretation of Article 5(1) of Directive 2014/104/EU on the disclosure inter partes of evidence.
General Court entirely dismisses Scania’s appeal and confirms Scania’s participation in the Truck Cartel
On 2 February 2022, the General Court of the European Union rendered its judgment in the Case T-799/17, Scania and Others v Commission. The Court dismissed in its entirety the appeal brought by Scania AB, Scania CV AB, and Scania Deutschland GmbH, against the decision of the European Commission of 27 September 2017 in Case AT.39824 – Trucks imposing a fine of EUR 880 million on Scania for its participation in the European Trucks Cartel. The General Court confirmed Scania’s involvement in the single and continuous infringement and rejected all arguments presented by Scania.
Contribution to the CNMC’s public consultation on quantification of damages
The Spanish Competition Authority (CNMC) plans to support judges by developing guidelines on quantifying damages caused by competition law infringements. The CNMC held a public consultation on the draft version of these guidelines. The contributions were published on the CNMC’s website, including ours. While the issues we picked up were partially addressed by the draft guidelines, we believe they merit further elaboration.
AG Rantos delivers a halfway opinion on the temporal application of the EU Antitrust Damages Directive (C-267/20, AB Volvo, DAF TRUCKS NV / RM)
In his opinion of 28 October 2021, Advocate General Rantos confirmed that the nature of the rules implementing the EU Damages Directive is determined by EU law and not by national law. The Advocate General states that the provisions on limitations and presumption of cartel-related harm are substantive. In contrast, the possibility for national judges to estimate the amount of harm is a procedural provision. Moreover, AG Rantos considers that pre-Directive knowledge-based limitation periods applied to cartel damage claims could reasonably begin with the publication of a fining decision’s multilingual summary.
First Italian judgment awarding damages against the European trucks cartel (Naples “Diego Armando Maradona” Stadium: Salernitana 1 – Juventus 0)
The trucks cartel fined by the European Commission in 2016 and 2017 triggered a wave of follow-on damage actions throughout the entire European Union. In Italy, after several legal actions having been launched by logistics associations and transport companies against the six sanctioned manufacturers, the Chamber of the Naples District Court specialised in business matters rendered the first judgment awarding damages in 2021.
Trucks cartel: AG Pitruzzella’s opinion on civil liability of subsidiaries for competition law infringements of the undertaking
On 15 April 2021 the CJEU’s Advocate General (AG) Pitruzzella handed down his opinion in the preliminary ruling procedure relating to the Trucks cartel litigation in Spain. The Barcelona Provincial Court (‘Barcelona Court’) requested the CJEU to interpret EU law on the question of whether a subsidiary company is liable for damages where the Commission has only fined the parent company for anticompetitive behavior. The AG in Case C-882/19 takes the view that, subject to conditions, a subsidiary without being addressee of the cartel decision can be held liable for the damages caused by the infringement. The Opinion, when confirmed by the CJEU, has as well implications on the question of where victims of Europe-wide cartel behavour might bring claims for damages.
Air Cargo Cartel: Application of Art. 101 TFEU in damage actions by national courts (Netherlands: 1 – England: 0)
On 6 May 2021 the CJEU published the opinion by AG Bobek in Case C‑819/19 Stichting Cartel Compensation and Equilib Netherlands BV v. KLM NV et al regarding a request for a preliminary ruling from the Rechtbank Amsterdam. It concerns damage actions against members of the international Air Cargo cartel. The case is particularly interesting as it shows the importance of choosing the right forum for a damage action in EU-wide cartel cases and the risks if national courts do not make use of preliminary rulings that are aimed at ensuring a consistent application of EU law across all Member States. Should the CJEU follow the opinion of AG Bobek, claimants that have pursued damage claims before the Amsterdam Court will have good chances to obtain compensation for the entire duration of the cartel from 1999 to 2006, while claimants before the High Court of England and Wales saw their damage claims significantly reduced to the period between 2004 and 2006.