On 27 July 2022, the District Court of Amsterdam (Court) delivered a judgment in which it addressed three main issues regarding the bundling of damage claims by specialised claims entities in one action: (i) the standing of the claimants, (ii) the applicable law, and (iii) the validity of the assignments [1] . This is an important judgment for victims of cartels and private enforcement across the EU, as it confirms the legality of the ‘assignment model’ by which entities, such as the lead plaintiff CDC, effectively bundle multiple damage claims in one single action. By choosing Dutch law as the law applicable to all damage claims, the Court guarantees and facilitates the victims’ path to compensation for damages caused by the Trucks cartel.
Factual background
On 19 July 2016, the European Commission (Commission) adopted a decision (Decision) [2] by which it sanctioned five European truck manufacturers, namely MAN, Volo/Renault, Daimler, Iveco and DAF, a total amount of 2.93 billion euros for participating in anti-competitive practices relating to the fixing of gross list prices for trucks, coordinating the timing of the introduction of new emission technologies, and passing those costs on to costumers (Trucks cartel). The infringement lasted for fourteen years (from 1997 to 2011) and covered the entire EEA. On 27 September 2017, the Commission adopted a second decision by which it sanctioned Scania 880 million euros for participating in the Trucks cartel [3] .
Following the Decision, Cartel Damage Claims (CDC) and several other plaintiffs brought an action for damages in July 2017 against MAN, Volvo/Renault, Daimler, Iveco and DAF before the District Court of Amsterdam in the Netherlands. CDC’s action pursues the claims of more than 700 large companies and SMEs throughout Europe and covers all brands, including Scania. In February 2020, CDC filed a second legal action before the Amsterdam District Court to enforce further claims for damages from approximately 400 transport and logistic companies.
On 15 May 2019, the District Court of Amsterdam rendered a first key judgment in the damages action by CDC against the European truck manufacturers’ participation in the Trucks cartel [4] . On 12 May 2021, the District Court delivered another important judgment in which it confirmed the binding effect of the entire Commission’s Decision, the scope and nature of the Trucks cartel and the likeliness of damage caused [5] . The present note addresses the latest interim judgment rendered by the District Court on 27 July 2022.
Brief discussions
The Court’s reasoning on the standing of the claimants, the applicable law and the validity of the assignments is further addressed below.
- Standing of the claimants
The Court dismissed the defendants’ argument that CDC and other claimants brought the compensation claims de facto by means of a collective redress action but failed to meet the requirements of such actions. Collective actions in the Netherlands are subject to several conditions and safeguards laid down in the Dutch Mass Claims Settlement Act (Wet afwikkeling massaschade in collectieve actie, hereinafter: WAMCA) and article 3:305a of the Dutch Civil Code [6] .
The Court refused to classify the actions brought as collective redress actions for two reasons. Firstly, the actions introduced by the claimants to obtain compensation almost exclusively concern professional parties that purchased a truck, which were most often small companies. The Court added that it was uncommon for consumers to buy trucks. Contrastingly, collective redress actions and the legal dispositions which provide for and safeguard such actions – WAMCA and article 3305a of the Dutch Civil Code – are typically meant to protect consumers rather than professional parties [7] . Secondly, CDC and other claimants entered into agreements, whether by assignment or mandate, with the injured parties [8] . Those agreements clearly determine the rights and obligations of each party so that, in case of disagreement, the matter can be settled in Court. Contrastingly, representatives of collective actions typically act in their own names and without a concrete mandate from the injured parties, making it difficult for the latter to sue the former in case of a disagreement.
The Court hence found no reason to disregard the action on the basis that the claimants had failed to meet the requirements imposed by Dutch law for instituting collective redress actions. Notably, the Court even highlighted the need for such actions for victims of competition law infringements, as they provide a method ‘to collectively solve the problem’ [9] .
- Applicable law
The Court first reminded that the claims for compensation brought forward in this case are claims in tort resulting from unlawful acts of competition [10] . The tort nature of such claims also originated from the fact that most trucks were not directly purchased from a truck manufacturer (no contractual basis), while it is specifically the truck manufacturers that caused damage to the injured parties. To determine which material law is applicable to those claims, the Court referred to private international law tort rules applicable in the Netherlands during the cartel period, the latter of which was established by the Commission’s Decisions (17 January 1997 to 18 January 2011) [11] . For claims that arose before 11 January 2009, the Court applied common Dutch international private law, that is article 4(I) of the Dutch Conflict of Laws Act (Wet Conflictenrecht Onrechtmatige Daad, WCOD). For claims arising after 11 January 2009, the Court applied article 6(3)(a) Rome II [12] .
Methodically, the Court started by interpreting article 4(1) of the WCOD, which provides that the applicable law is that of the State on whose territory the unlawful act of competition affected the competitive relations[13] . In this case, since the Trucks cartel affected (i.e., increased) the prices of virtually all trucks manufactured and sold in the EU, the provision remained too broad for the Court to be able to single out one State in which the cartel had an apparent effect. While the parties brought forward interpretations to pinpoint the location where the unlawful act of competition affected the competitive relations (i.e.: where the assignor entity purchasing the truck is established), the Court shied away from those, as they would essentially lead to the application of multiple legal systems[14]. The Court duly noted that this would defy the very purpose of private international law, which was intended to make the course of judicial proceedings simpler and more efficient through the application of one legal system.
By reference to the EU law principle of effectiveness and in line with the judgment of the Court of Appeal of Amsterdam[15] in the Aircargo case, the Court recognised that article 4(1) of the WCOD fell short of offering an adequate solution to damage claims resulting from infringements of competition law affecting several States[16]. The Court hence turned to EU legislation for a more ‘pragmatic solution’ whereby it could uniformly apply one law to the damage claims[17]. According to article 6(3)(b) of Rome II, the injured party can choose the applicable law under strict conditions. In this case, the claimants’ choice for Dutch law was found to satisfy all requirements[18]. By using the principle of effectiveness, the Court was able to apply indirectly article 6(3)(b) of Rome II to all claims governed by article 4(1) of the WCOD[19], so that Dutch law applied uniformly[20]. For claims arising after 11 January 2009, the Court also found Dutch law to be directly applicable through article 6(3)(a) Rome II[21].
- Validity of the assignments
The last issue that the Court addressed is whether the damage claims had been validly assigned from the injured parties to the claimants[22].
By reference to article 14(1) Rome I[23], the Court first established the applicable law to the assignment contract, which is Dutch law (the choice of law of the parties)[24]. The Court reminded that, under Dutch law, since no general rule prohibits the assignment of a claim for damages in tort, the claims in question were in principle transferrable[25].
The Court then turned to the question of whether the damage claims had actually been assigned from the injured parties to the claimants. It assessed this question under Dutch law, hence aligning with the claimants’ view that they could rely on the presumption of proof contained in 3:119(1) of the Dutch Civil Code[26]. The Court elaborated that presumption, specifying that, when the documentation submitted contained the deed and the agreement (title) of assignment, which were clearly issued by the assignor, the claimant would be presumed to be entitled to the claims[27]. On this point, it rejected the defendants’ argument that assignment of the damage claims could not be verified, as the documentation submitted was ‘voluminous’, difficult to search and provided in multiple languages[28]. The Court asserted that the claimants’ documentation was ‘complete’ and that the truck manufacturers were expected to be able to examine documents drafted in foreign languages, since they were active at the European level in markets where those languages were used[29].
To further assess whether the damage claims had been validly assigned from the injured parties to the claimants, the Court examined whether there were any mandatory provisions in English or German law affecting the validity of the assignments[30]. Mandatory provisions in private international law (see priority rule, article 9(3) Rome I) are considered so important for the public interest of a State that they can be invoked to set aside the law that is normally applicable (in this case, Dutch law). The Court dismissed the defendants’ argument that English champerty and maintenance law had to be applied (through article 9(3) Rome I) and that the assignments were invalid under that law[31]. Regarding German law, the Court equally rejected the defendants’ arguments that the assignments were void under the German Rechtsdienstleistungsgesetz (RDG) and contrary to public policy and morality under German law[32]. If the RDG had been applied, CDC would have been the only claimant to comply with the requirement of registration which entities need to fulfill when they bundle damage claims in one action[33]. Moreover, the Court also noted that CDC (and other claimants) did comply with the German public policy requirement of securing litigation costs[34].
Comments
This judgment is very important for the private enforcement of damage claims in an EU-wide context and underlines the willingness of the Dutch courts to provide effective and pragmatic solutions for companies based in other Member States. The judgment also confirms previous case law of Dutch courts on the validity of the ‘assignment model’. The judgment is also important, as it shows that Dutch courts are relying on and interpreting national law in line with EU law principles, in particular the principle of effectiveness.
By Vera Keraudren and Till Schreiber
[1] Rechtbank Amsterdam, Vonnis van 27 juli 2022, ECLI:NL:RBAMS:2022:4466, C/13/639718 / HA ZA 17-1255 e.a.
[2] Camions (Case AT.39824), Commission Decision of 19 July 2016, C (2016) 4673 final.
[3] Camions (Case AT.39824), Commission Decision of 27 September 2017, C (2017) 6467 final.
[4] Rechtbank Amsterdam, Vonnis van 15 mei 2019, ECLI:NL:RBAMS:2019:3574, C/13/639718 / HA ZA 17-1255 e.a.
[5] Rechtbank Amsterdam, Vonnis van 12 mei 2021, ECLI:NL:RBAMS:2021:2391, C/13/639718 / HA ZA 17-1255 e.a.
[6] Supra note 1, para 2.4.
[7] Ibid., para. 2.7.
[8] Ibid., para. 2.8.
[9] Ibid., para. 2.7.
[10] Ibid., para. 2.13.
[11] Ibid., para. 2.14.
[12] Date of entry into force of Rome II, article 32 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199.
[13] Supra note 1, para. 2.15.
[14] Ibid., para. 2.16.
[15] Gerechtshof Amsterdam, Vonnis van 6 juli 2021, ECLI:NL:GHAMS:2021:1940, 200.266.816 en 819.
[16] The Court also noted that damage actions for infringements of competition were initiated after the WCOD entered into force, which also outlined the inadequacy of the WCOD to the present case.
[17] Supra note 1, para 2.17.
[18] Ibid., para. 2.18.
[19] Essentially those that arose before 11 January 2009.
[20] Supra note 1, para 2.19.
[21] Ibid.
[22] Ibid., para 2.20.
[23] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177.
[24] Supra note 1, para. 2.22.
[25] Ibid., paras. 2.23 and 2.25.
[26] Ibid., para. 2.27.
[27] Ibid., para 2.28.
[28] Ibid., paras 2.29 and 2.30.
[29] Ibid., para 2.30.
[30] Ibid., para 2.36.
[31] Ibid., para 2.39.
[32] Ibid., paras 2.42 and 2.46.
[33] Ibid., para, 2.40.
[34] Ibid., para, 2.43.
