Cement

Its first action, lodged in August 2005, was deemed admissible by the Federal Court of Justice in 2009. Subsequently however the action was dismissed by the Higher Regional Court of Düsseldorf on appeal in February 2015 given the court’s view that the assignment of claims by the damaged companies to CDC were invalid. The main reason for declaring the assignments invalid was the alleged sole purpose of shifting of cost risk from damaged companies to CDC which in the courts’ view did not have the financial capacity to bear the adverse costs at the time of the assignments. In 2005, in contrast, the Düsseldorf Regional Court ruling on the value in dispute had assumed that CDC’s economic situation would not be seriously jeopardised if CDC had to bear the costs of litigation in the event of losing the case.

As a matter of fact, CDC has made advance payments for court fees totalling more than EUR 713,000 at the end of the process. Furthermore, CDC has made full cost reimbursements to all opposing parties after its damage action and the appeal were dismissed, totalling more than EUR 3.5 million. Thus, all costs have been paid. The Higher Regional Court of Düsseldorf did not allow a further appeal against its judgment of 18 February 2015. It therefore has become final.

On 16 September 2015, CDC filed its second damage action relating to the German cement cartels, this time before the Regional Court of Mannheim against HeidelbergCement. Against the background of the judgment of the Düsseldorf Court of 18 February 2015, CDC took measures to secure adverse legal costs for three instances. CDC has provided a precautionary security of more than EUR 2.3 million to the benefit of the defendant and the state. Bringing the new legal action shows the dedication and persistence of CDC when it comes to the enforcement of antitrust damage claims.

On 24 January 2017, the Regional Court of Mannheim confirmed the admissibility of the action. However, the Mannheim Court rejected the claim in its entirety as time barred. The Mannheim Court thereby followed its appeal court, the Higher Regional Court of Karlsruhe, which had decided in a judgment of 9 November 2016 that a 2005 statutory provision suspending limitation periods in antitrust damages cases would not be applicable to claims which arose prior to entry into force. CDC filed an appeal before the Higher Regional Court of Karlsruhe against the judgment of the Mannheim Court.

In its landmark judgment of 12 June 2018, the German Federal Court of Justice provided long awaited legal certainty in relation to limitation periods. The judgment confirms the view of the majority of Higher Regional Courts in Germany and overruled the interpretation of the Higher Regional Court of Karlsruhe which lead to the judgment of the Mannheim Court dismissing the second cement action of CDC.

In 2019, the parties reached an out-of-court settlement for an undisclosed amount. The case is now fully settled. This case lasted 14 years and is one of a kind. It was the first large scale antitrust action in Europe, which paved the way for a private enforcement culture in Europe and provided legal certainty for other actions brought by CDC. This case also exhibits CDC’s resilience to cartel participants and that CDC will dedicate the necessary time for the harmed companies to obtain redress.