On 5 January 2023, the German Federal Court of Justice (BGH) published an important judgment in relation to follow-on damage actions relating to the so-called German drugstore products cartel (Case KZR 42/20). In its ruling, Germany’s highest civil court also confirmed a factual presumption of harm in the case of anticompetitive information exchanges. This is an important clarification as the BGH had thus far only acknowledged such factual presumption in cases of price-fixing and market-sharing practices. In addition, the BGH clarified that cartel participants are jointly and severally liable for damages caused in relation to products they do not manufacture themselves if they were aware that the anticompetitive practices extended to the other products.
Trucks cartel: New CJEU landmark judgement empowers victims of antitrust infringements with the right to request ex novo documents, created by the defendants (C-163/21, PACCAR e.a.)
On 10 November 2022, the EU Court of Justice rendered another key judgment in relation to the series of damages proceedings brought in Spain against participants in the European Trucks Cartel. This judgment on the interpretation of Art. 5(1) of the Damages Directive clarifies the wide scope of evidence to which claimants can request access to substantiate potential damages claims. The judgment further strengthens the effectiveness of private enforcement of EU competition rules and should have a positive impact on the whole wave of compensation claims against truck manufacturers in Europe.
Assessing the compatibility of seemingly contradictory statistical evidence in the case of damage estimations (reflections on the article written by Peter Bönisch and Roman Inderst)
In a recent publication, Peter Bönisch and Roman Inderst tackle the delicate issue of the evaluation of seemingly contradictory econometric evidence. Introducing the concept of severity measures, they propose a method to avoid the common obstacles plaguing the interpretation of seemingly conflicting empirical evidence through the practical example of financial damage estimation in follow-on cases. This blog post discusses the ideas presented in the paper.
When is a truck a truck? Defining the relevant products for cartel damages claims
On 1 August 2022, the Court of Justice of the European Union has ruled in Case C-588/20 Daimler (Ententes – Camions à ordures ménageres) that specialised trucks are covered by the cartel found in the European Commission’s 2016 decision in Case AT.39824 Trucks. The judgment concerns the fundamental and practically relevant question of how to identify the products directly affected by a cartel infringement according to the decision of a competition authority, which in this respect is binding for the civil courts in a follow-on action for damages. As a result, the right of injured parties to access the Statement of Objections sent by that authority to the cartelists prior to the adoption of the decision will gain in importance, especially if this decision has finally been adopted after a settlement.
Trucks Cartel: the Supreme Court of Norway confirms jurisdiction of the Norwegian courts for follow-on damage action based on the principles of joint and several liability and the civil liability of the ‘undertaking’
In an interesting decision the Supreme Court of Norway confirms jurisdiction of the Norwegian courts for a follow-on damage action based on the principles of joint and several liability and the civil liability of the ‘undertaking’.
German Federal Court of Justice confirms the claims assignment model in the Diesel emission case (and beyond)
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.