This document constitutes an internal translation made by CDC of the original text and is provided for

informational purposes only. It carries no legal force, validity, or effect.

ECLI:NL:RBAMS:2026:3734

Court:

Amsterdam District Court

15 April 2026

Date of judgment:

Date of publication: 15 April 2026

Case number:

Areas of law:

Particulars:

Sources:

C/13/639718 / HA ZA 17-1255

Civil law

First instance – three-judge panel

Rechtspraak.nl

Summary

Competition law. Truck cartel. Judgment subsequent to the interlocutory judgment of 28

February 2024 (ECLI:NL:RBAMS:2024:1119, the second judgment on the burden of

assertion (stelplicht)). The court rejects the Truck Manufacturers’ plea of limitation under

Dutch law. With reference to the judgment of the CJEU in Heureka Group v Google, the court

holds that the subjective limitation period did not begin to run until the publication of the

summary of the European Commission’s Decision on 7 April 2017. The writ of summons is

dated 13 July 2017. The court does not accept the Truck Manufacturers’ position that CDC

(or the Assignors) was already in possession, prior to 7 April 2017, of the information

necessary to bring an action for damages. As regards objective limitation, the court holds

that it follows from the Damages Directive and Article 6:193s of the Dutch Civil Code that

an action for compensation of damage caused by an infringement of competition law

becomes time-barred upon the expiry of twenty years from the start of the day following

the day on which the infringement ceased. In the present case, the Commission determined

the end of the Infringement to be 18 January 2011. Accordingly, there is no question of

objective limitation.

In the present judgment it must determined whether there was a percentage of overcharge.

To that end, the parties have submitted regression analyses prepared by experts. In

determining the overcharge rate, the court takes the regression analysis prepared by CDC’s

experts as its starting point. The court finds an overcharge percentage of 7%.

As regards the run-off period (the effective end date of the Cartel), the court adopts the

period determined by CDC’s experts. The court finds that the run-off period (the period

during which the Cartel continued to have an effect after the date of 18 January 2011

established by the Commission) ended on 30 May 2013.

CDC also claims to have suffered loss on the ground that agreements had been made

concerning the introduction of new emission technologies, as a result of which trucks

meeting the latest (European) standards came to market only later. The court holds that

these emissions-related damages cannot be awarded for lack of sufficient substantiation.

To quantify the damages, the volume of commerce must also be determined. The court sets

out the principles by reference to which it can be determined. The parties can on that basis

themselves draw up a list of truck transactions that qualify for compensation.

The value of commerce also remains to be determined. Here too the court sets out the

principles. The court holds that the purchase price actually paid by the purchasers and the

lease instalments calculated by CDC are the starting point for the calculation of the value of

commerce.

The court refers the case to the roll for the parties to comment on the further course of the

proceedings in relation to the following points for decision: the determination of the

volume of commerce and the value of commerce, and the Truck Manufacturers’ pass-on

defence.

Judgment

AMSTERDAM DISTRICT COURT Private Law Division

Case number: C/13/639718 / HA ZA 17-1255

Judgment of 15 April 2026

in the matter of

the legal person under foreign law

RETAIL CARTEL DAMAGE CLAIMS S.A., having its registered office in Luxembourg,

Luxembourg, claimant, hereinafter referred to as “CDC”, counsel: J.A. Möhlmann, J.N.

Kleywegt and N.A.D. Groot,

against

1.

2.

3.

the legal person under foreign law TRATON SE, formerly known as MAN SE, having its

registered office in Munich, Germany,

the legal person under foreign law MAN TRUCK & BUS SE, formerly known as MAN

TRUCK & BUS AG, having its registered office in Munich, Germany,

the legal person under foreign law MAN TRUCK & BUS DEUTSCHLAND GMBH,

having its registered office in Munich, Germany,

defendants, hereinafter jointly referred to as “MAN”, counsel: J.S. Kortmann and M.G.

Kuijpers,

4.

the legal person under foreign law AB VOLVO (PUBL), having its registered office in

Gothenburg, Sweden,

5.

6.

7.

the legal person under foreign law VOLVO LASTVAGNAR AB, having its registered

office in Gothenburg, Sweden,

the legal person under foreign law RENAULT TRUCKS SAS, having its registered office

in Saint-Priest, France,

the legal person under foreign law VOLVO GROUP TRUCKS CENTRAL EUROPE

GMBH, having its registered office in Ismaning, Germany,

defendants, hereinafter jointly referred to as “Volvo/Renault”, counsel: A. Knigge and H.M.

Cornelissen,

8.

the legal person under foreign law DAIMLER AG, having its registered office in

Stuttgart, Germany,

defendant, hereinafter referred to as “Daimler”, counsel: W. Heemskerk,

and

9.

the legal person under foreign law SCANIA AB, having its registered office in

Södertälje, Sweden,

10. the legal person under foreign law SCANIA CV AB, having its registered office in

Södertälje, Sweden,

11. the legal person under foreign law SCANIA DEUTSCHLAND GMBH, having its

registered office in Koblenz, Germany,

hereinafter jointly referred to as “Scania”, interveners, counsel: C.E. Schillemans.

The defendants and the intervener Scania will hereinafter jointly be referred to as the

Truck Manufacturers.

In addition, the following defined terms are used in this judgment:

Assignors: the parties (purchasers/users of trucks) which have assigned their alleged

claims for damages to CDC (see paragraphs 2.3, 3.2 and 3.18 of the interlocutory judgment

of 15 May 2019¹(the judgment on the burden of assertion));

Purchaser(s): purchaser(s)/user(s) of trucks (including the Assignors);

Decision: the decision of 19 July 2016 by which the European Commission imposed a fine

on a number of undertakings for a cartel established in the market for medium and heavy

trucks (the Truck Cartel or the Cartel);

Claimants: CDC and the other claimants in Group 1 of the Truck Cases (see also paragraph

1.3 below);

¹ECLI:NL:RBAMS:2019:3574.

Infringement: the infringement of Article 101 TFEU as established by the Commission in

the Decision and in the Scania Decision;

Scania Decision: the decision of 27 September 2017 by which the European Commission

imposed a fine on Scania for an infringement of Article 101 TFEU.

1. The proceedings

1.1. The writ of summons was originally also directed against DAF Trucks N.V. and DAF

Trucks Deutschland GmbH (together “DAF”) and against CNH Industrial N.V., Stellantis N.V.,

Iveco S.P.A. and Iveco Magirus AG (together “CNH/Iveco”). CDC has since reached a

settlement with DAF and with CNH/Iveco, so that they are no longer parties to the

proceedings.

1.2. Because, up to the time when DAF reached a settlement with CDC, the Truck

Manufacturers had largely conducted a joint defence, the procedural documents originating

from DAF will also be listed below. Because CNH/Iveco likewise reached a settlement with

CDC very shortly before the date of this judgment, the same applies to the procedural

documents originating from CNH/Iveco. For the sake of clarity, only those documents

relating to the substantive debate between the parties are listed below.

1.3. The court delivered a judgment on 28 February 2024.²In that judgment (the second

judgment on the burden of assertion), the court held that a further round of written

submissions was necessary in order, in short, to give CDC (and, at that time, the other

Claimants in Group 1 of the Truck Cases) the opportunity to further substantiate all truck

transactions for which it claims damages. The court also invited the parties to submit

observations on whether a referral to the damage assessment procedure

(schadestaatprocedure) was still necessary, or whether the damages could also be assessed

in these proceedings. The court subsequently indicated in its procedural order of 5 June

2024 that it intended to sever the present case from the cases in Group 1 of the Truck

Cases. After the parties had commented on that intention, the court carried it into effect by

procedural order of 17 July 2024. CDC thereafter complied with the second judgment on

the burden of assertion and, by written submission, further substantiated the truck

transactions in respect of which it claims damages. The Truck Manufacturers responded to

that written submission. The court subsequently, having taken cognisance of the parties’

positions on the matter, determined that the damages would be assessed in the present

proceedings. The court ordered a case management hearing and a substantive hearing.

1.4. The case management hearing was held on 3 June 2025. Minutes of the hearing were

drawn up which, together with the documents referred to therein — including the written

pleadings and the presentations given by the (party-appointed) experts — form part of the

²ECLI:NL:RBAMS:2024:1119.

case file. At the closing of the hearing, the court directed the parties to file, simultaneously,

a summary statement (overzichtsakte) setting out in full all matters still relevant to the

substantive hearing on 18–19 November 2025 and to the decisions to be taken by the

court, including matters already set out in earlier procedural documents.

1.5. The parties subsequently filed the following documents:

•

the CDC summary statement of 1 October 2025, with Exhibits CDCR-0085 to CDCR-

0099;

the summary statement of the Truck Manufacturers of 1 October 2025, with Exhibits:

–

DAIM-0016;

IVEC-0010 to IVEC-0012;

MAN-0011 (updated version of 19 August 2025);

TRUC-0070;

•

the letter of counsel Möhlmann of 1 October 2025, enclosing a corrected version of

Exhibit CDCR-0089;

CDC’s statement of reduction of claim of 29 October 2025 (following the settlement

with DAF);

the B16 form of 29 October 2025 containing the joint request of CDC and DAF to strike

out the proceedings against DAF;

the further statement filed by the Truck Manufacturers for the substantive hearing,

dated 29 October 2025, with Exhibits TRUC-0071 to TRUC-0076;

the further statement filed by CDC for the substantive hearing, dated 29 October 2025,

with annexes 1a (Volume of Commerce overview document), 1b (Volume of

Commerce USB stick) and 2 (Agree/Disagree statement).

1.6. The substantive hearing took place on 18 and 19 November 2025. Minutes of the

hearing were drawn up which, together with the documents referred to therein —

including the written pleadings and the presentations given by the (party-appointed)

experts — form part of the case file.

1.7. Judgment was then reserved.

1.8. Subsequently, by letter of 13 April 2026, CDC stated, briefly, that it had reached a

settlement with CNH/Iveco and that it no longer maintains any claim in respect of

CNH/Iveco’s share in the damage which the Assignors allege to have suffered. By notice to

the roll of 13 April 2026, CDC requested that the proceedings against CNH/Iveco be struck

out. CDC further filed a statement of reduction of claim, by which it reduces its claim

against CNH/Iveco to nil (i.e. withdraws the claim against CNH/Iveco). Also on behalf of

CNH/Iveco, CDC requests the court to give effect to the reduction of claim and the striking

out in respect of CNH/Iveco before delivering judgment. CNH/Iveco confirmed, by notice to

the roll of 14 April 2026, that the parties unanimously request that the proceedings be

struck out.

1.9. Thereafter, by letter of 14 April 2026, CDC stated, briefly, that it had reached a partial

settlement with MAN. Consistently with that, CDC also filed a statement of reduction of

claim.

1.10. Likewise by letter of 14 April 2026, CDC stated, briefly, that it had also reached a

partial settlement with Scania. Consistently with that, CDC has also filed a statement of

reduction of claim.

2. Introduction

The matters before the court in this judgment

2.1. At the case management hearing the court decided that the following topics would be

addressed at the substantive hearing on 18–19 November 2025:

1.

The methodology for calculating the (potential) damages, in particular the following

sub-topics:

a.

b.

the method of calculating the alleged overcharge;

the method of calculating the alleged damages arising from the timing of, and

the pass-on of the costs of, the implementation of the European emission

standards EURO III to VI (hereinafter referred to as “emissions-related

damages”);

c.

d.

which data are to be used in calculating the (potential) damage;

the duration of the (possible) run-off period.

2.

3.

The methodology for determining the volume of commerce, involving:

a.

b.

which truck transactions are at issue;

the (method of calculating the) truck prices to be used for the damage

assessment;

c.

the (method of calculating the) truck lease instalments to be used for the

damage assessment.

The Truck Manufacturers’ pass-on defence.

2.2. The parties subsequently placed these topics on the agenda for the substantive hearing

on 18–19 November 2025 in the following order:

•

general introduction to the damages debate;

methodology, data, overcharge and agree/disagree;

emissions-related damages;

value of commerce;

volume of commerce;

plausibility;

pass-on defence.

2.3. The court will address each of the (sub-)topics set out below in turn. The Truck

Manufacturers’ plea of limitation under Dutch law was not on the agenda for the

substantive hearing. That plea had been raised earlier in the proceedings; the argument on

it had taken place at the hearing of 20 April 2023. The parties thereafter restated their

positions in their summary statements. The court sees reason to also rule on the plea of

limitation in this judgment, proceeding (still) on the assumption that Dutch law applies to

CDC’s claims (see further below).

Starting point: Dutch law applies

2.4. The court reiterates that the assessment below of the points at issue proceeds on the

basis that Dutch law is applicable. As was decided at the case management hearing on 3

June 2025, the court will not deliver a final judgment until the Court of Justice of the

European Union (CJEU) has ruled on the questions referred for a preliminary ruling by the

Supreme Court in its judgment of 20 June 2025 concerning the applicable law and the

possibility of a choice of Dutch law.³As stated in the minutes of the case management

hearing, in so far as the present case reaches the stage at which final judgment would

otherwise be given before the CJEU has ruled, the hearing of the case will be adjourned so

that the parties may still comment on the consequences if Dutch law should nevertheless

not apply to all of CDC’s claims.

3. Limitation

3.1. The Truck Manufacturers, as their most far-reaching substantive defence, take the

position that CDC’s claim is time-barred.

Subjective limitation

3.2. The Truck Manufacturers rely in the first place on the subjective limitation period laid

down in Article 3:310 of the Dutch Civil Code. Under Article 3:310(1) of the Dutch Civil

Code, an action for compensation of damage becomes time-barred upon the expiry of five

years from the start of the day following the day on which the injured party became aware

both of the damage and of the person liable for it. The Truck Manufacturers contend that as

of 3 March 2011 it was publicly known that MAN had submitted a leniency application to

the Commission and that the Commission was investigating a number of truck

manufacturers. From that moment, CDC and the Assignors were aware of the competition-

law infringement on the European truck market, the relevant period, and the presumed

participants in the Infringement. With reference to judgments of the Dutch Supreme Court⁴

³ECLI:NL:HR:2025:945.

⁴Supreme Court 31 October 2003, ECLI:NL:HR:2003:AL8168; Supreme Court 3 December

2010, ECLI:NL:HR:2010:BN6241.

and of the Rotterdam District Court,⁵the Truck Manufacturers submit that the subjective

limitation period started to run on 4 March 2011 and expired on 4 March 2016. The

limitation period was not interrupted before that date and the writ of summons was served

on 13 July 2017. On that basis, according to the Truck Manufacturers, the claims are time-

barred.

3.3. CDC disputes that the claims are time-barred under Article 3:310 of the Dutch Civil

Code. With reference to the judgment of the CJEU of 22 June 2022 in Volvo v RM,⁶CDC

submits that the limitation period did not begin to run until the publication of the summary

of the Decision in the Official Journal of the European Union on 7 April 2017. At the time the

writ of summons was served, the limitation period had therefore not yet expired.

3.4. In order to determine whether the claims are (in part) time-barred, the court must first

establish which limitation regime applies to CDC’s claims. Article 22(1) of the Damages

Directive provides that the substantive provisions of the Damages Directive shall not have

retroactive effect. In Volvo/RM the CJEU held that the limitation rule in Article 10 of the

Damages Directive is a substantive provision within the meaning of Article 22 of the

Damages Directive. It follows that the limitation regime of Article 10 of the Damages

Directive and its national implementation in Article 6:193s of the Dutch Civil Code have no

retroactive effect. Those provisions therefore apply only to claims in respect of which the

limitation period had not yet expired on the deadline for implementation of the Damages

Directive, namely 27 December 2016.

3.5. Where the limitation regime under the Damages Directive does not apply, the

limitation regime is governed by national law, as held by the CJEU in its judgment of 27

March 2019 in Cogeco.⁷The national limitation regime governing the exercise of the right

to claim damages is laid down in Article 3:310 of the Dutch Civil Code. Article 3:310 of the

Dutch Civil Code provides that an action for compensation of damage becomes time-barred

upon the expiry of five years after the injured party has become aware of (i) the damage

and (ii) the identity of the person liable for the damage. As noted above, the Truck

Manufacturers fix that moment at 3 March 2011.

3.6. The court does not follow the Truck Manufacturers in this. It follows from the judgment

of the CJEU of 18 April 2024 in Heureka Group v Google⁸that, in principle, from the moment

a summary of the Commission’s decision has been published in the Official Journal, it may

reasonably be assumed that an injured party has the information necessary to bring an

action for damages, unless it is shown that that information was known well before that

⁵District Court of Rotterdam 26 September 2018, ECLI:NL:RBROT:2018:8001 (Van Gelder v

Shell).

⁶CJEU 22 June 2022, C-267/20, ECLI:EU:C:2022:494 (Volvo/RM).

⁷CJEU 27 March 2019, C-637/17, ECLI:EU:C:2019:263 (Cogeco).

⁸CJEU 18 April 2024, C-605/21, ECLI:EU:C:2024:324 (Heureka Group v Google).

date to the person seeking damages (paragraph 83). The limitation period cannot,

however, begin to run before the infringement has ceased (paragraph 86).

3.7. The summary of the Decision was published on 7 April 2017. In light of Heureka Group

v Google, the limitation period thus in principle did not begin to run until that date. The

court does not accept the Truck Manufacturers’ position that CDC (or the Assignors)

already had, before that date, the information necessary to bring an action for damages. It

follows from the CJEU’s judgment of 22 June 2022 in Volvo/RM that the existence of an

infringement of competition law, the existence of damage and a causal link between that

damage and the infringement, as well as the identity of the infringer, form part of the

information which the injured party must have in order to bring an action for damages. The

Truck Manufacturers refer to the Commission’s press release of 18 January 2011 and to

news reports in various countries on 18, 19, 20 and 25 January 2011 and on 3 and 4 March

2011. In the court’s view, those publications do not permit the conclusion that CDC (or the

Assignors) had become aware — or could reasonably be deemed to have become aware —

of the above information at any of those moments. The Commission’s press release states

no more than that unannounced inspections took place on 18 January 2011 “in the truck

industry”. No truck manufacturers are named. The Commission writes, among other things:

“The Commission has reason to believe that the companies concerned may have

violated EU antitrust rules that prohibit cartels and restrictive business practices

and/or the abuse of a dominant market position (Articles 101 and 102 respectively

of the Treaty on the Functioning of the EU)

(…)

Unannounced inspections are a preliminary step into suspected anticompetitive

practices. The fact that the Commission carries out such inspections does not mean

that the companies are guilty of anti-competitive behaviour nor does it prejudge the

outcome of the investigation itself.”

This is a brief statement containing no specific information. The other media reports to

which the Truck Manufacturers refer are also very summary, contain only highly general

information (in part identical to the Commission’s press release) and concern an

investigation by the Commission that had only just been opened. In so far as truck

manufacturers are quoted in those reports, this amounts to no more than a confirmation

that they were under investigation and that they were cooperating with the investigation.

Considered together, those reports do not supply the minimum level of knowledge

required under Volvo/RM. The fact that MAN is mentioned in the reports as the whistle-

blower who made a report to the Commission does not lead to a different conclusion.

3.8. The fact that CDC in these proceedings has sought a declaratory judgment and did not

(initially) bring a concrete claim for damages does not detract from the foregoing. Contrary

to the Truck Manufacturers’ assertion, that does not mean that CDC (or the Assignors)

could have brought an action at an earlier stage. The same applies to the Truck

Manufacturers’ argument that CDC, according to the Truck Manufacturers themselves,

assumes that a cartel has a price-raising effect and could therefore already have suspected

that it had suffered damage as a result. That is still insufficiently concrete.

3.9. The writ of summons is dated 13 July 2017. That falls within the five-year period

following publication of the summary of the Decision. Accordingly, there is no question of

subjective limitation.

3.10. Even before the handing down of Heureka Group v Google, the court would have

reached the same conclusion. That is set out below, for the sake of completeness, in

paragraphs 3.11–3.13. Although Heureka Group v Google had not yet been handed down at

the time of the hearing, there is no reason to afford the parties an opportunity to respond

to that judgment, because it does not lead to a different conclusion from the law previously

in force.

3.11. The limitation period under Article 3:310 of the Dutch Civil Code begins to run once

the injured party has become aware of the damage and of the person liable. A recent

judgment of the Dutch Supreme Court has confirmed the settled rule that this must involve

actual knowledge.⁹The injured party must actually be in a position to bring an action for

damages. That is the case once the injured party has obtained sufficient certainty that

damage has been caused by a failure or wrongful conduct on the part of a third party.

Whether there is actual knowledge depends on the circumstances of the case. The question

to be answered in that regard is whether the injured parties had the knowledge and insight

actually to assess the soundness of the third party’s conduct.

3.12. In answering the question whether injured parties have the necessary knowledge and

insight actually to assess the soundness of a third party’s conduct, the Cogeco judgment is

of relevance. It follows from that judgment that the injured party must be able to await the

final decision of a competition authority and must then still have sufficient time to bring an

action for damages, without any national limitation regime being allowed to stand in the

way.

3.13. Against that background, the court holds that the injured parties were, at the earliest,

actually aware of the damage and of the legal persons liable for it on 7 April 2017. On 7

April 2017 the European Commission published the summary of its Decision on the

Infringement. The writ of summons is dated 13 July 2017, which is within the five-year

period. Accordingly, there is no limitation. So much for the assessment, obiter dictum, as it

would have stood prior to Heureka Group v Google.

3.14. The plea of subjective limitation therefore fails.

Objective limitation

3.15. The Truck Manufacturers rely, in the second place, in respect of part of the claims for

damages, on the objective limitation period laid down in Article 3:310 of the Dutch Civil

Code. Under that provision, an action for compensation of damage is also time-barred upon

the expiry of twenty years from the event causing the damage. That period begins to run as

soon as the damage-causing event has taken place, even where the injured party is

⁹Supreme Court 12 January 2024, ECLI:NL:HR:2024:19.

unaware of the existence of its claim. According to the Truck Manufacturers, the 20-year

objective limitation period began to run, for each individual claim for damages, on the date

of the transaction to which the claim relates. In so far as claims arose more than twenty

years before the date of a valid interruption letter, the service of the writ of summons, or

the filing of a related amendment to the claim, they are therefore time-barred. The court

understands that by this the Truck Manufacturers have in mind the period from 17 January

1997 (start of the Infringement period) to 14 July 1997 (twenty years before the date of the

writ of summons).

3.16. CDC disputes that there is any objective limitation of part of the claims for damages.

According to CDC, there is no sequence of damage-causing events. The damage-causing

event is not an individual truck transaction but the single continuous Infringement. The

objective limitation period therefore does not begin to run truck-by-truck or transaction-

by-transaction. There is a single point in time for the Infringement as a whole: the day on

which the infringement ceased. That is 18 January 2011, according to CDC.

3.17. In light of what has been held above with respect to the plea of subjective limitation, it

is also material here whether the objective limitation period had already expired on the

deadline for transposition of the Damages Directive, namely 27 December 2016. The court

finds that it had not. The earliest possible date on which the objective limitation period

could have begun to run is the date on which the Infringement began, 17 January 1997.

That means that the 20-year period would, at the earliest, expire on 17 January 2017. That

date is after the transposition deadline of the Damages Directive. Accordingly, the Damages

Directive and Article 6:193s of the Dutch Civil Code apply. It follows that an action for

compensation of damage caused by an infringement of competition law is time-barred

upon the expiry of twenty years from the start of the day following the day on which the

infringement ceased. In the present case, the Commission has determined that the

Infringement ended on 18 January 2011. Accordingly, there is no objective limitation. The

plea of objective limitation is therefore also rejected.

4. The Infringement - unlawfulness

4.1. The Truck Manufacturers submit that there is no civil liability towards the Assignors

because the conditions for a tort (onrechtmatige daad) have not been satisfied. The court

does not accept that submission: the Decision and the Scania Decision establish the

Infringement. That means that unlawfulness (onrechtmatigheid) vis-à-vis the Assignors is a

given, in so far as an Assignor was affected by the Infringement. Whether that is the case

depends on the answer to the question whether the Assignors suffered damage as a result

of the Infringement.

5. Plausibility of damage (gross list prices)

Plausibility

5.1. In its interlocutory judgment of 12 May 2021,¹⁰the court assessed the defence of the

Truck Manufacturers that (in so far as now relevant) the Assignors did not and could not

have suffered loss. The court rejected that defence and held that it has not been established

that it is ruled out that the Infringement caused damage to the Assignors (paragraph 3.69).

Notwithstanding that decision, at the present stage of the proceedings the Truck

Manufacturers (continue to) argue that it is not plausible that the Infringement led to

higher truck prices (and therefore to damage for the Assignors).

5.2. The court did indeed formulate that decision in the interlocutory judgment cautiously,

but that formulation followed the defence that was being assessed. In the interlocutory

judgment the court also took the following (binding final) decisions on the plausibility of

damage.

5.2.1. The argument of the Truck Manufacturers (which they continue to advance) that the

Infringement in essence involved no more than an exchange of information was rejected.

The Commission’s use of the term “collusion” to characterise the conduct of the Truck

Manufacturers implies that the Commission considers that this went beyond the mere

sharing of innocuous information on gross list prices; there was evidently also mutual

coordination and agreement. The use of the term “coordinate” makes clear that the

Commission considers that specific agreements were made. The court too will proceed on

that basis (paragraph 3.19).

5.2.2. The Truck Manufacturers’ defence that they did not implement the agreements

reached at the impugned meetings was also rejected (paragraph 3.20).

5.2.3. The court held that the Harrington & Schinkel report¹¹(setting out a theory of harm)

is cogent and convincing. It was prepared by persons who may be regarded as experts in

the field and it sets out in a comprehensible manner not only the effect on the market of the

information exchanged between the manufacturers but also that, by keeping the

agreements secret both within and outside the undertakings, the appearance of a fully

competitive market was maintained. This is underpinned by the generally accepted

economic theory that prices rise as costs rise. The court finds convincing the theory of

Harrington & Schinkel that, because the lower links in the distribution chain were unaware

of the gross list price agreements and of the exchange of information on gross list prices,

the gross list prices were treated as cost prices (paragraph 3.63).

¹⁰ECLI:NL:RBAMS:2021:2391.

¹¹Exhibit CDCR-0051, The Collusion on Gross List Prices by the European Trucks Cartel and

its Effect on Net Retail Prices, Expert opinion for Cartel Damages Claims S.A. (CDC),

Luxembourg, Joseph E. Harrington, Jr. and Maarten Pieter Schinkel, 25 October 2020.

5.2.4. Lastly, the court held (in paragraph 3.67) as follows:

“Even at the hearing the Truck Manufacturers were unable to give a convincing

answer to the question of what the purpose of the exchange of information on

gross list prices was. According to the Truck Manufacturers, they were simply

interested in everything happening on the market and saw little or no harm in it.

That stands a long way from what the Commission determined in the Decision

regarding the purpose of the collusion: to distort independent price-setting and

normal price movements for trucks in the EEA (paragraph 71). The Decision

shows that there was already a high degree of transparency on the truck market

(paragraph 29). Future market conduct and the Truck Manufacturers’ plans

concerning changes in gross prices and gross list prices were among the

remaining uncertainties. Once again the court observes that the Truck

Manufacturers, with the exception of Scania, have acknowledged the

Commission’s findings. It is difficult to see why a Truck Manufacturer would, out

of mere curiosity, give its competitors information about its future market

conduct without anything in return that would (or could) benefit it. In this case:

information about the future market conduct of its competitors. This was done

with the intention of coordinating market conduct, as the Commission has also

established. The Commission has moreover established that the Addressees

committed the Infringement deliberately (paragraph 104). It is, moreover,

obvious that the information exchange was beneficial to the Truck Manufacturers.

The Cartel operated for many years and not a single member withdrew from the

Cartel prematurely. That too tells against the proposition that the Infringement

had no effect and could not have caused damage. In that connection the court also

refers to paragraph 81 of the Decision, in which the Commission considers that,

given the market share and turnover of the Addressees in the EEA, it may be

assumed that the effects on trade were appreciable.”

5.3. Taken together, all of these considerations led to the conclusion “that it has not been

established that it is ruled out that the Infringement caused damage to the Assignors”

(paragraph 3.69). Put differently: the court considers it unlikely that the Infringement did

not lead to higher prices and (therefore) to damage to the Assignors.

5.4. Similar considerations are to be found in the decisions of foreign courts.

5.4.1. In the decision of the Competition Appeal Tribunal (CAT) (United Kingdom) in Royal

Mail/BT v DAF of 7 February 2023,¹²the following is held:

“(…) For long-running conduct which encompasses some of Europe’s largest and

most sophisticated industrial operators and which was supported by a series of

secret, high level meetings over multiple years, it does not seem plausible (…) that

the firms involved could have been ignorant of the risks they were taking. Nor

¹²Case Nos. 1284/5/7/18 (T), 1290/5/7/18 (T), (1284) Royal Mail/(1290T) BT, Judgment

of 7 February 2023.

would it have needed to have been so secretive if it was being done to benefit

competition by for example reducing costs associated with risks and uncertainty.”

(282)

“(…) We consider it inconceivable that DAF did not expect to raise transaction prices

through its participation in the Cartel for such a long period.” (319)

“We find that a plausible theory of coordination might be formed around the ability

of the Cartelists to use list price increases as a focal point in the hope or expectation

that this would make net prices higher. (…) we cannot, and do not need to, test or

prove this hypothesis fully. But the clues we do have from the regular Cartel

member meetings over 14 years, in which there were several references to net

prices among other things, does provide at least a plausible account of how

coordinated list price increases might have affected net transaction prices. (…)”

(320)

5.4.2. The Court of Appeal upheld the CAT’s decision on 27 February 2024¹³and (also)

held:

“On its own admission, DAF participated in a secret cartel with other truck

manufacturers to maintain prices at a supra-competitive level for some fourteen

years. It is inconceivable that it would have participated in the cartel for such an

extended period of time with all the financial, regulatory and reputational risk that

that entailed, unless it was gaining significant financial benefit from that

participation. (…)” (140)

5.4.3. In a judgment of 5 December 2023,¹⁴the German Federal Court of Justice

(Bundesgerichtshof, BGH) held (in an English translation):

“(1) In its overall assessment, the appeal court attached considerable weight to the

rule of general experience to be applied here in the light of the nature and gravity of

the cartel infringement, in particular its content relating to gross list prices as an

important instrument of strategic control of price-setting behaviour on the market,

the cartel participants’ over 90% market coverage in the EEA and the maintenance

of the cartel over 14 years with an increasing intensity of the mutual exchange of

information. It correctly held that the establishment and maintenance of the cartel

for at least 14 years would not make sense without a worthwhile return on the

cartel, despite the considerable risks involved, including financial risks. (…) (40)

(2) (…) The appeal court did not err in law in basing its conviction that, with the

probability required for a judgment on the merits, harm of some amount was

incurred, firstly on the considerable weight of the rule of general experience in the

¹³Ibid., (1284) Royal Mail/(1290T) BT, Judgment of the Court of Appeal of 27 February

2024.

¹⁴ECLI:DE:BGH:2023:051223UKZR46.21.0 (LKW-Kartell III).

present case and, secondly, on the fact that there are no circumstances which, in

view of the risks involved, could explain the continuation of the cartel for many

years despite a lack of returns. (…).” (41)

5.4.4. The Borgarting Court of Appeal (Norway) held, inter alia, as follows in a judgment of

17 March 2025¹⁵(p. 39):

“(…) the Court of Appeal is of the opinion that the respondents cannot be heard to

argue that this was merely an exchange of information between manufacturers in

the form of sharing knowledge of gross list prices that had already been determined

internally by each manufacturer. The Court of Appeal has concluded that the nature

and scope of the illegal price collusion was more qualified. There was regular and

long-term contact between the participants. The contact included discussion of

future gross prices with a view to influencing future price developments in the end-

user market. The participants had a common, long-term interest in maintaining the

price level.

In order to achieve a coordinated effect, it is not a condition that the producers go so

far as to agree on specific end-user prices combined with an agreement on sanctions

against participants who price the product lower. The Court of Appeal is of the

opinion that, based on economic theory, it is sufficient that the participants have a

common understanding of what is the relevant area for the end-user prices, in

practice often a common understanding of the price development, combined with

the fact that they are in a position to monitor whether the other participants act on

accordance with this, and also have a potential means of sanction at their disposal if

someone violates the common understanding.

A key factor in the existence of the conditions for coordinated effects here is that the

illegal price collusion took place over several years (…).

The District Court concluded that the model described by Professor Harrington

provided “a good explanation” for why the exchange of list prices could lead to

higher end-user prices (…). As the Court of Appeal considers the issue of

coordinated effects, the Court of Appeal finds no reason to go into detail of Professor

Harrington’s theory. (…) Since the Court of Appeal is of the opinion that the tortious

act was more extensive than such sharing of price intentions (…), Professor

Harrington’s theory is of less interest. (…)”

¹⁵Case No. 23-084349ASD-BORG/03 (Exhibit CDCR-0095a; unofficial English translation

Exhibit CDCR-0095b).

5.4.5. All these considerations are also in line with what is stated on this subject in the

Practical Guide:¹⁶

“Infringing the competition rules exposes the cartel members to the risk of being

discovered and thus subject to a decision finding an infringement and imposing

fines. The fact alone that undertakings nonetheless engage in such illegal activity

suggests that they expect to reap substantial benefits from their actions, i.e. that

they expect the cartel to have effects on the market and, hence, on their

customers.”

5.5. It follows from all of the foregoing that, in so far as relevant, it is sufficiently plausible

that the Infringement caused damage to the Claimants.

Decisions of the CAT and the Borgarting Court of Appeal

5.6. In what follows, the court will frequently refer to the decisions of the CAT and of the

Borgarting Court of Appeal. The parties do likewise; in both those decisions, regression

analyses produced by (the experts of) both the claimants in those proceedings and of the

truck manufacturers are also assessed; and the CAT and the Borgarting Court of Appeal

both have economists on the bench who may be assumed to be better placed than lawyers

to assess such economic/econometric analyses.

Right to compensation

5.7. According to the case-law of the CJEU, any person may claim compensation for the

damage suffered where there is a causal link between that damage and an infringement of

competition law. All national rules concerning the exercise of the right to compensation

flowing from an infringement of Article 101 TFEU must comply with the principles of

effectiveness and equivalence. This means that they must not be formulated or applied in

such a way as to make it excessively difficult or practically impossible to exercise the right

to compensation guaranteed by the TFEU.¹⁷The Damages Directive further provides, inter

alia, as follows:

5.7.1. Article 4: in accordance with the principle of effectiveness, national law must not

make it excessively difficult or practically impossible to obtain full compensation for

damage caused by an infringement of competition law.

¹⁶Practical Guide on the quantification of harm in actions for damages based on

infringements of Article 101 or 102 of the Treaty on the Functioning of the European

Union, No 140.

¹⁷Directive 2014/104/EU of the European Parliament and of the Council of 26 November

2014 on certain rules governing actions for damages under national law for infringements

of the competition law provisions of the Member States and of the European Union (the

Damages Directive).

5.7.2. Article 17: the standard of proof applicable to the quantification of damages must not

make it practically impossible or excessively difficult to exercise the right to compensation.

The national courts must be empowered to estimate the damage where it is established

that a claimant has suffered damage but it is practically impossible or excessively difficult

to quantify the damage suffered with precision on the basis of the available evidence.

5.7.3. Claims for damages arising from infringements of competition law generally require

a complex factual and economic analysis (recital 14).

6. Overcharge

Course of proceedings: expert reports

6.1. In support of its position that an overcharge occurred during the Cartel period, CDC has

submitted a damage report¹⁸by Prof. Dr M.P. Schinkel, Professor of Competition Economics

and Regulation at the University of Amsterdam, and Dr L. Huberts, research fellow at the

University of New South Wales. That report is hereinafter referred to as Schinkel & Huberts

2024. CDC has also produced the underlying dataset.¹⁹

6.2. In response to Schinkel & Huberts 2024, the Truck Manufacturers submitted reports

from their own experts in separate procedural submissions of 7 May 2025.

•

Daimler submitted a rebuttal report²⁰and three country-specific overcharge reports

relating to Germany,²¹France²²and Spain,²³all prepared by E.CA Economics.

¹⁸Exhibit CDCR-0075, Quantification of Cartel Overcharges sustained by the Assignors to CDC

Retail SA as a result of the European Trucks Cartel, 10 September 2024.

¹⁹Exhibit CDCR-0076 (USB stick) and CDCR-0077 (USB stick).

²⁰Exhibit DAIM-006, Expert opinion on the reports submitted by CDC, 6 May 2025.

²¹Exhibit DAIM-007, Estimation of possible overcharges due to competition law

infringements, 16 October 2020.

²²Exhibit DAIM-008, Estimation of possible overcharges due to competition law

infringements in France, 7 April 2022.

²³Exhibit DAIM-009, Estimation of possible overcharges due to competition law

infringements — Spain, 6 December 2022.

•

CNH/Iveco submitted a rebuttal report²⁴by Compass Lexecon. In addition, CNH/Iveco

instructed Compass Lexecon to carry out a regression analysis, the report of which²⁵

has also been submitted.

MAN has submitted a report²⁶by Compass Lexecon containing its response to Schinkel

& Huberts 2024. MAN has also instructed Compass Lexecon to carry out its own

regression analysis and has submitted the resulting report.²⁷

•

Scania has submitted a report²⁸by RBB Economics.

Volvo/Renault has submitted a report²⁹by Frontier Economics containing a response

to Schinkel & Huberts 2024. In addition, Volvo/Renault submitted a report³⁰by

Frontier Economics with annexes containing country-specific overcharge reports for

France (prepared by CRA), Spain (prepared by Oxera), Portugal (prepared by CEGEA)

and Germany (prepared by CRA).

6.3. The parties then set out their positions on the (calculation of the) overcharge at the

case management hearing on 3 June 2025. On behalf of CDC, Prof. Schinkel and Dr Huberts

gave a presentation³¹explaining the Schinkel & Huberts 2024 report. On behalf of the

Truck Manufacturers, Dr G. [name] of Oxera Consultancy LLP gave a presentation.³²The

Truck Manufacturers had asked Oxera to summarise the parties’ positions on the analyses

carried out. The aim of the presentation was:

²⁴Exhibit IVEC-0008, Economic assessment of the Schinkel Huberts Report on the

Quantification of Cartel Overcharges sustained by the Assignors to CDC Retail SA as a result of

the European Trucks Cartel, 6 May 2025.

²⁵Exhibit IVEC-0009, Overcharge analysis of the infringement sanctioned by the European

Commission (CASE COMP 39824 Trucks) on the price of IVECO trucks in Spain, 6 May 2025.

²⁶Exhibit MAN-008, Economic assessment of the report prepared by Schinkel and Huberts

and CDC’s corresponding claim calculation, 6 May 2025.

²⁷Exhibit MAN-009, Trucks: Estimation of Possible Price Effects of the Infringement, 7 May

2025.

²⁸Exhibit SCAN-0010, Response to Schinkel & Huberts report for Retail Cartel Damage

Claims S.A., 6 May 2025.

²⁹Exhibit VTRT-0009, Response to evidence on the “Quantification of cartel overcharges”

submitted in the CDC Proceedings, 7 May 2025.

³⁰Exhibit VTRT-0010, VT/RT’s positive econometric evidence in response to the CDC claim, 7

May 2025, with Annexes A to F.

³¹Exhibit CDCR-0083, Quantification of cartel overcharges incurred by the assignors to CDC

Retail SA as a result of the European Trucks Cartel.

³²Exhibit TRUC-0069, Overcharge analysis in the CDC I case: a practical guide to the parties.

•

to provide an overview of the data sources and methods used by the parties;

to identify the points of agreement between the parties’ experts;

to outline the main differences between the parties’ experts, to indicate how these can

best be addressed, and to set out the main shortcomings of the data and analysis used

by CDC’s experts.

6.4. At the case management hearing, the court established that the parties agree that

regression analysis is the appropriate instrument for calculating any overcharge. This must

be carried out on the basis of a “during-after” analysis. The parties do, however, disagree

on which factors should be included and which data should be used. It was therefore

agreed at the case management hearing that the parties, assisted by their experts, would

jointly draw up an Agree/Disagree statement and submit it to the court. The intention was

for the parties to submit the Agree/Disagree statement prior to the oral hearing on 18–19

November 2025, so that it could still be debated, after which the court would take a

decision. CDC submitted the Agree/Disagree statement on 29 October 2025. It contains 140

items. On CDC’s side, Prof. Dr Schinkel and Dr Huberts drafted the Agree/Disagree

statement as regards the Empirical overcharge analysis. For the Truck Manufacturers, that

part was handled by Dr [name].

6.5. In response to the rebuttal reports and (country-specific) regression analyses

submitted by the Truck Manufacturers (see under 6.2), CDC submitted a further report by

Schinkel and Huberts, hereinafter referred to as Schinkel & Huberts 2025a.³³At the oral

hearing, Prof. Schinkel and Dr Huberts gave a presentation addressing Schinkel & Huberts

2024 and the criticism of it by (the experts of) the Truck Manufacturers. On behalf of the

Truck Manufacturers, Dr [name] again addressed the rebuttal of the findings of

Prof. Schinkel and Dr Huberts.

Introduction

6.6. The parties and their experts agree that regression analysis is the appropriate method

for determining whether an overcharge has occurred. The Practical Guide³⁴provides the

following explanation of what a regression analysis is:

“Regression analysis is a statistical technique which helps to investigate patterns in

the relationship between economic variables and to measure to what extent a

certain variable of interest (e.g., in the flour cartel example, the price for flour) is

influenced by the infringement as well as by other variables that are not affected by

the infringement (e.g. raw material costs, variations in customer demand, product

³³Exhibit CDCR-0086, Reply to the Truck Manufacturers’ Remarks on our Expert Opinion

“Quantification of Cartel Overcharges incurred by the Assignors to CDC Retail SA as a result of

the European Trucks Cartel”, 30 September 2025.

³⁴Practical Guide on the quantification of harm in actions for damages based on

infringements of Article 101 or 102 of the Treaty on the Functioning of the European

Union.

characteristics, the level of market concentration). Regression analysis therefore

makes it possible to assess whether, and by how much, observable factors other

than the infringement have contributed to the difference between the value of the

variable of interest observed on the infringement market during the infringement

period and the value observed in a comparator market or during a comparator time

period. Regression analysis is thus a way to account for alternative causes for the

difference between the compared data sets. All comparator-based methods are, in

principle, capable of being implemented through regression analysis provided that

sufficient data observations are available.”³⁵

6.7. Regression analyses never yield an exact calculation of the overcharge. Any empirical

model is merely an approximation of reality. The experts for the parties in these

proceedings, in particular Prof. Dr Schinkel and Dr Huberts on behalf of CDC and Dr [name]

on behalf of the Truck Manufacturers, agree on this. The Practical Guide states as follows:³⁶

“(…) It should be stressed, however, that even very sophisticated regression

equations rely on a range of assumptions and will (like any technique to predict a

hypothetical situation) only be able to deliver estimates. (…)”.

6.8. The quality of the dataset on which the analysis is based and the choice of control

variables are of great importance to the reliability and accuracy of (the outcomes of) a

regression analysis.³⁷The prices actually paid must, after all, be compared with the

hypothetical situation in which (the effect of) the Infringement is disregarded (the “but-for”

or counterfactual scenario). That latter situation can, of course, only be determined or

calculated approximately. In the book Economics for Competition Lawyers, it is described as

follows:

"Any damages assessment needs to strike a balance between two objectives. The

first is to find the most accurate answer – the desire to determine the real damage

value as closely as possible, which is how an economist would naturally seek to

approach quantification problems. The second is to use approaches that are clear

and practical, and fit within the existing legal frameworks. Calculating the exact

damage arising from an infringement requires complete information about what

would have happened in a parallel world where the infringement did not take

place – the ‘but for’ or counterfactual situation. Determining the counterfactual is

inherently difficult as such complete information does not exist. (…)

Hence, to assess the counterfactual it is inevitable that you enter into the ‘realms

of economic fantasy’ and carry out economic modelling. (…) All models are

necessarily simplifications of the real world. They rely on assumptions, and can

vary in the degree to which they take into account all factors that may influence

³⁵Practical Guide, No 68.

³⁶Practical Guide, No 85; see also No 17.

³⁷See also Practical Guide, Nos 78, 81, 82.

the counterfactual. This variation is often driven by constraints on data, time, or

budgets."³⁸

6.9. That views can differ widely on which data are most appropriate, which control

variables to use, and so on, is plain from the Agree/Disagree statement submitted by the

parties on 29 October 2025: more than 100 (117 according to Prof. Schinkel) of the 140

items on which the experts disagree relate to the regression analyses/calculation of the

overcharge.

6.10. The starting point (under Dutch law) for the calculation of the extent of the obligation

to pay compensation is that the injured party must, so far as possible, be placed in the

position it would have been in had the event causing the damage not occurred. This means

that the extent of the damage is determined by comparing the actual situation with the

situation that would (presumably) have existed had the event causing the damage not

taken place. Article 6:97 of the Dutch Civil Code provides that the court assesses the

damage in the manner most consistent with its nature, and estimates the damage where its

extent cannot be precisely determined. In this case, as considered above, the extent of the

damage cannot be precisely determined. The court will therefore (have to) estimate the

damage, or at least the overcharge percentage. It will do so on the basis of the regression

analyses drawn up and explained by the parties’ experts. Regression analysis is, after all,

the appropriate method for determining whether there has been an overcharge: a

regression analysis is used to determine (approximately) what the price of the trucks

would have been – in this case – had the Infringement not taken place.

Regression analysis in the Schinkel & Huberts 2024 report

6.11. In Schinkel & Huberts 2024, the overcharge was calculated by carrying out a

regression analysis on CDC data relating to 1,115 Assignors, concerning 95,594 trucks

purchased or leased between 1990 and 2021 from the brands involved in the Infringement.

From that population, a dataset of 5,075 trucks was extracted which, according to

Prof. Schinkel and Dr Huberts, is representative, complete and fully manually verified.

According to Schinkel & Huberts 2024, this is a dataset of sufficient size to obtain reliable

estimates for a statistical analysis applicable to all purchased trucks.

6.12. The conclusion of Schinkel & Huberts 2024 is that the models used indicate, with a

very high degree of probability, that over the period from 17 January 1997 to 28 June 2010

the Cartel was responsible, on average, for an overcharge of between 8.33% and 11.52%

compared with the hypothetical prices in a situation without a cartel (but-for prices). This

corresponds to an overcharge of between 7.69% and 10.33% of the prices actually paid by

the Assignors (observed cartel prices).

6.13. As regards the run-off period, the Schinkel & Huberts 2024 report states that in the

summer of 2010 the effectiveness of the Cartel gradually began to decline. End May 2013

³⁸Economics for Competition Lawyers, Gunnar Niels, Helen Jenkins and James Kavanagh

(Oxera), Third edition, paras 10.8–10.9.

was the most probable end date of effects of the cartel. The conclusion is that the run-off

period lasted from 28 June 2010 to 30 May 2013.

Position of the Truck Manufacturers

6.14. For the purposes of their response to the Schinkel & Huberts 2024 report, as

previously indicated, the Truck Manufacturers also relied on the services of Oxera, in the

person of Dr [name] of Oxera Consultancy LLP.

6.15. At the case management hearing on 3 June 2025, Dr [name] commented on the

Schinkel & Huberts 2024 report by means of a presentation in which he compared it with

the reports by the Truck Manufacturers’ experts. He summarised the findings of all the

experts of CDC and of the Truck Manufacturers and highlighted the differences. Dr [name]

noted that the findings of the Truck Manufacturers’ economic experts vary but generally

indicate no, or almost no, price increase. He further observed that, according to those

experts, run-off effects are implausible, and that the run-off effects identified in Schinkel &

Huberts 2024 are not robust.

6.16. More specifically, Dr [name] noted that the Truck Manufacturers’ economic experts

depart from the analysis in Schinkel & Huberts 2024 on the following points.

6.16.1. The analysis for CDC used data on a subset of the truck purchases made by CDC’s

Assignors (5,075 observations). The analyses for the Truck Manufacturers used the

manufacturers’ own data on all relevant sales transactions (an average of 227,732

observations for cross-country analyses, and an average of 113,445 for country-specific

analyses). Dr [name] concludes that the dataset used in Schinkel & Huberts 2024 has

significant shortcomings. In his view, it is preferable to use data from the Truck

Manufacturers, because those data contain more observations, provide more information

on variables, are derived from internal systems used for business decisions, are less

heterogeneous and are readily available.

6.16.2. With regard to costs, the analysis for CDC used a combination of publicly available

indices. The analyses for the Truck Manufacturers used the data provided by the Truck

Manufacturers themselves, specifically for each truck/transaction. According to Dr [name],

that approach is the correct one, because Schinkel & Huberts 2024 does not adequately

take into account cost developments over time and cost differences between trucks at a

given point in time. Furthermore, according to Dr [name], it is unlikely that production

costs were themselves influenced by the Infringement, as Schinkel & Huberts 2024 claims.

6.16.3. With regard to controlling for truck characteristics, CDC based its analysis on a set

of thirteen characteristics. According to Dr [name], that is too limited because trucks are

highly heterogeneous products with divergent technical characteristics. He considers that

Schinkel & Huberts 2024 therefore runs the risk of producing a distorted estimate of the

overcharge. Schinkel & Huberts 2024 does not control for customer size, even though large

customers are likely to have bargaining power or to obtain volume discounts. Furthermore,

according to Dr [name], it is crucial to take into account differences in prices between

brands and between countries over time in order to estimate the potential effect of the

Infringement correctly. Because Schinkel & Huberts 2024 does not do this and only

controls for average price differences between brands, there is a risk of a distorted

estimate of the overcharge.

6.16.4. As regards analysing supply and demand, the CDC analysis uses Gross Domestic

Product (GDP) to control for demand and transport volume (TKM, tonne-kilometres

transported) to control for supply. In the analyses for the Truck Manufacturers, various

control variables were used that reflect significant differences between countries and the

market positions of the Truck Manufacturers in those various countries. According to Dr

[name], TKM is not an indicator of supply but of demand. The negative relationship

between truck prices and TKM in Schinkel & Huberts 2024 is therefore implausible.

Furthermore, the inclusion of GDP as an indicator of demand in the combined analysis

across multiple countries is inappropriate. French data,³⁹for example, show that GDP and

the number of new truck registrations do not evolve in the same way across all countries.

Dr [name] argues that the inclusion of GDP is likely to influence the analysis in Schinkel &

Huberts 2024.

6.16.5. As regards the end date of the Infringement, Dr [name] points out that Schinkel &

Huberts 2024, contrary to the date set out in the Decision, sought to determine the end

date empirically themselves. For that purpose, a structural break test was used, which

identifies the date corresponding to the largest unexplained change in prices, within the

context of the model and data of Schinkel & Huberts 2024. The conclusion reached is that

28 June 2010 was the effective end date of the Infringement. According to Dr [name], it is

unclear why Schinkel & Huberts 2024 prefers an alternative (earlier) end date to the end

date set out in the Decision. The start and end dates of the Infringement established by the

Commission form a natural basis for the during-and-after analysis. The analysis in Schinkel

& Huberts 2024 does not provide a sound basis for deviating from the end date set by the

Commission.

6.16.6. Finally, according to Dr [name], run-off effects are improbable. Schinkel & Huberts

2024 is, in this respect, based on incorrect assumptions and on speculative theoretical

explanations. Thus, gross list prices do not play a significant role in determining

transaction prices. Furthermore, the Truck Manufacturers do not systematically set gross

list prices on an annual basis. Even if they did, the three-year run-off period would not be

substantiated.

Response from Schinkel and Huberts (CDC)

6.17. According to Prof. Schinkel and Dr Huberts, the above criticism from the Truck

Manufacturers can be summarised in the following seven points:

•

the dataset on which the analyses in Schinkel & Huberts 2024 are based is too small;

the internal cost data of the various Truck Manufacturers have not been included;

³⁹Exhibit SCAN-0010, Response to Schinkel & Huberts report for Retail Cartel Damage

Claims S.A., 6 May 2025.

•

no account has been taken of the structurally greater bargaining power of truck buyers

after the Cartel than during the Cartel;

•

no account has been taken of brand-, country- or buyer-specific models;

the control variables for supply and demand factors are inadequate;

an incorrect date has been assumed for when the cartel effect begins to dissipate;

the inclusion of the Euro emission standards as an explanatory variable in the

regression model leads to fragmentation of the time series.

6.18. In the Schinkel & Huberts 2025a report and at the oral hearing of 18–19 November

2025, Prof. Schinkel and Dr Huberts responded to those points of criticism. They do not

agree with them. In summary, they submit the following:

•

the size of the CDC dataset is representative and more than sufficiently large and

accurate, and contains actual observations;

the private, endogenous cost series of the Truck Manufacturers are opaque, non-

comparable, variable and contaminated;

there is no evidence whatsoever of structurally greater bargaining power on the part

of truck buyers after the Cartel than during the Cartel;

an overall approach is far superior to fragmenting the analyses into brand- and

country-specific regressions; there is no evidence of bias; the Cartel raised gross list

prices across the whole of Europe;

•

the control variables for supply and demand factors are exogenous and are derived

from objective public sources;

there is ample evidence that the formal and the effective cartel dates differ, and if the

effective cartel end date is not (correctly) dated, the analysis deteriorates significantly;

as regards the EURO standards, it is crucial to control for these important truck

innovations over time for the purposes of a during-after comparison.

The assessment

6.19. The court emphasises two points. Firstly: Prof. Dr Schinkel, Dr Huberts, Dr [name]

(Oxera) and the other economic experts engaged by the Truck Manufacturers (see 6.2) are

all respected experts in this field. They are engaged worldwide to calculate the damages

caused by cartels in proceedings such as these. The court has no reason to doubt their

expertise. Nor do the parties. Secondly: there is no single correct or ideal method for

calculating the overcharge (in this case).

6.20. As considered above, the court will use the regression analyses submitted by the

parties in order to assess whether an overcharge has occurred and, if so, to estimate the

overcharge percentage. Since under Dutch law, in principle, the ordinary rules of evidence

apply as regards the extent of the damage⁴⁰and it is therefore, in principle, for CDC to

⁴⁰Supreme Court 27 November 2009, ECLI:NL:HR:2009:BH2162, NJ 2014/201 (World

Online).

assert and substantiate the extent of the damage (potentially) suffered by the Assignors as

a result of the Infringement, Schinkel & Huberts 2024 will be taken as the starting point.

The substantiation provided in that report will be discussed in broad terms below, partly in

the light of the criticism levelled at it by Dr [name] on behalf of the Truck Manufacturers

(the seven points set out in 6.17 and 6.18). Where necessary or appropriate, the reports by

the various Truck Manufacturers’ economic experts (and the criticism of them by Prof. Dr

Schinkel and Dr Huberts) will also be addressed. There will occasionally be some overlap,

as the Truck Manufacturers’ experts often tend to defend their own reports, analyses and

choices rather than actually engaging with the methodology used in Schinkel & Huberts

2024.

6.21. Not all details and points of criticism will be discussed. That is neither possible nor

necessary. The court will confine itself to the main points, as set out above and as discussed

at the hearing.

Methodology/approach

6.22. As Prof. Dr Schinkel and Dr Huberts clearly explain in their Schinkel & Huberts 2025a

report, their (methodological) approach differs significantly from that of the experts

representing the Truck Manufacturers. They explain this as follows:

"Before delving into the seven points of criticism in some detail, it is useful to set

out the overarching strategy adopted by all consultants in challenging our results

in Schinkel & Huberts (2024). It is based on the false claim that the ‘correct

methodology’ for intertemporal overcharge analysis would dictate country-,

manufacturer brand-, segment- and even buyer specific analyses. Our EU-wide

approach would instead have been designed against this standard, be “not

adequate”, “generate inherently unreliable results”, that “overstate the potential

overcharge”. The opposite is true, however. What is the best econometric

approach to quantifying cartel damages in a case depends on the specifics of the

case, a good understanding of the market processes and where the cartel effects

are likely to have materialized, and the quality data available.

The European Trucks Cartel operated EU-wide, on what by all accounts was a

European market, affecting truck purchasing prices EU-wide through an

ingenious and novel cartel mechanism by which it centrally, at headquarters level,

collusively raised the harmonized gross list prices across the EEA. We have high

quality data, that is very complete, detailed and reliable, from across Europe.

Those are actual truck purchases from a large group of buyers from across

Europe, who each purchased trucks in multiple countries, from truck

manufacturers who produced and sold in all those countries (and more) across

Europe. We combine these actual purchase data with objective exogenous

variables that control for other developments across Europe that also partially

explained truck prices over the relevant period. Hence, we can study the research

question we address in our report, which is what the effect has been of the trucks

cartel on prices paid by CDC assignors, at the appropriate level: the EEA. A

strength of the data that we analyzed is that it contains truck buyers from across

Europe, allowing for consistent analysis throughout. The consultants, each

working for one of the manufacturers, naturally were limited to data of the

specific manufacturer that hired them, not the rich data across brands that we

have. However there was (and is) no need to subset data further into country-

specific, segment specific, even assignor-specific, if not truck-specific analyses.

The gross list prices that the manufacturers collusively raised at headquarters’

level were EU-wide and not country- or truck buyer-specific. The consultants’

fragmentation strategy, in all its forms and varieties, is deliberate and intended to

obfuscate the analysis by focusing on the idiosyncratic price variations, due to

differences in trucks and discounts, which obscures the view on the systemic

change in truck prices level that the cartel implemented. That the consultants

insist that their way is the best, even the only way, simply is false."⁴¹

In this context the Schinkel & Huberts 2025a report also refers to the Commission’s Scania

Decision, which states (on p. 11):

“(39) The initial EEA-wide gross price lists contain individual gross prices for

basic models and each optional component of the trucks. Therefore a gross price

for each tailor made truck model with a specific configuration required in a

specific country or by a specific customer can be calculated by adding up the gross

list prices for all components contained in that specific model. This explains how a

gross price list on headquarter-level contains the basis for truck models in

different countries, even though their actual composition is tailored to

requirements of that country and later to the specific requirements of the

individual customer.”

Attention is also drawn to the following passage in the Commission’s press release of 19

July 2016:

“[C]oordinating prices at ‘gross list’ level for medium and heavy trucks in the

European Economic Area (EEA). The ‘gross list’ price level relates to the factory

price of trucks, as set by each manufacturer. Generally, these gross list prices are

the basis for pricing in the trucks industry. The final price paid by buyers is then

based on further adjustments, done at national and local level, to these gross list

prices"⁴²

Finally, Prof. Schinkel and Dr Huberts write:

“Any differences between countries, for example where certain preferred brands

required lower discounts than less preferred brands, would have existed with and

without the cartel, and were essentially the same – before, during and after. The

same is true for buyer-specific discounts due to different bargaining positions

between individual buyers. There is no need, therefore, to look at individual

⁴¹Schinkel & Huberts 2025a, pp. 15–16.

⁴²Schinkel & Huberts 2025a, p. 17.

brand-, country-, or buyer-specific level to quantify the cartel’s effect in raising

the price level across the board. The trucks cartel raised the base level for pricing

in the industry, as a higher starting point for individual price negotiations with

buyers across the EU. These further bargaining processes were unaffected and

remained essentially the same. Therefore the discounting would have remained

the same, so that the transaction price level increase was due to the increased

gross list prices across the European market.”⁴³

6.23. The court notes that the main differences between the approach/methodology in

Schinkel & Huberts 2024, on the one hand, and that in the reports by the Truck

Manufacturers’ experts, on the other, lie in (i) the data sets and control variables used, and

(ii) the fact that Schinkel & Huberts 2024 carries out an EU-wide analysis, whereas the

analyses by the Truck Manufacturers’ experts are more fragmented, focusing on a (limited

number of) country/ies and/or on brand. As considered above, Prof. Schinkel and Dr

Huberts are correct in stating that there is no single correct methodology for conducting a

during-and-after analysis. That, as the Truck Manufacturers argue, “the correct

methodology for intertemporal overcharge analysis would dictate country-, manufacturer-,

brand-, segment- and even buyer-specific analyses” is, according to Prof. Dr Schinkel and

Dr Huberts, a “false claim”. The court finds that the Truck Manufacturers’ assertion is not

supported by the Practical Guide either. The differences will be discussed below where

necessary.

Dataset(s) used and sample size

6.24. As mentioned, Schinkel & Huberts 2024 carried out a regression analysis on CDC data

relating to 1,115 Assignors, concerning 95,594 trucks purchased or leased between 1990

and 2021 from the brands involved in the Infringement. From that population, a

representative, comprehensive and fully manually verified dataset of 5,075 trucks was

compiled. That dataset was subsequently corrected to 4,873 observations, as discussed

below. Prof. Schinkel and Dr Huberts have further explained how the dataset was compiled,

and have shown that it is sufficiently large, relevant and representative, and can therefore

reliably be used for the regression analysis they carried out.

6.24.1. Prof. Dr Schinkel and Dr Huberts have further explained how the dataset was

selected. The dataset used is drawn from a population of trucks of all the brands involved

and covers the entire period from 1997 (start of the Infringement) to 2018. The complete

CDC population (the trucks purchased by the more than one thousand Assignors) consists

of 95,594 truck (transaction) records covering the period between 1990 and 2021. Where

possible, corrections have been made for missing values, incorrect values and

measurement errors in the full dataset, as these could potentially result in a less reliable

regression. A representative dataset was then established by means of informed random

sampling. Informed random sampling meant that the price and technical specifications of

each truck (transaction) were known and that sufficient documentation was available.

⁴³Schinkel & Huberts 2025a, p. 18.

Furthermore, it is not a random selection: “The representation was established from the

complete trucks dataset of 95,594 trucks on the basis of the distribution of elementary

characteristics in the information collected on all assignors’ trucks – in particular assignor

country, year of the transaction, brand name, and transaction type”.⁴⁴The truck

(transaction) records included in the dataset are therefore representative of the entire

population. This is illustrated in the report by the following figure:

Of the 5,075 observations, only 24 trucks had been purchased before the start of the

Infringement (17 January 1997). These were excluded (and this number was also too small

to carry out a before-during-and-after analysis). Fourteen trucks purchased in 2018 were

also excluded (data from after 2018 were not included either). That brought the total to

5,037.⁴⁵Finally, a manual check and correction of the data was carried out, in the course of

which the underlying documentation for each truck transaction was checked, the relevant

parties were contacted by telephone to fill in missing values, and incorrect values were

corrected (“there were 159 for which no (sufficiently reliable) price measurement was

available. Furthermore, 2 trucks had no engine power recorded and for a further 3 trucks

engine displacement was missing”). This resulted in a representative and accurate set of

4,873 transactions:

6.24.2. Prof. Schinkel and Dr Huberts based their baseline analyses on that dataset of 4,873

trucks obtained from a random sample, but they also carried out analyses using the entire

population (95,594), the largest possible representative set (26,304), as well as smaller

⁴⁴Schinkel & Huberts 2024, p. 30 (4.1).

⁴⁵Ibid.

sets and still more complete datasets (3,427 and 2,779). According to their calculations,

those analyses confirm the robustness of the baseline analyses:

•

the baseline analysis indicates an overcharge of 7.69–7.78%;

the analysis using the set of 3,427 indicates an overcharge of 8.42–8.98%; and

the analysis using the set of 2,279 indicates an overcharge of 10.33%.

This is (largely) summarised in the following table:

The robustness analysis on the largest possible representative dataset (26,304), which

includes the 4,873 baseline transactions, indicates an overcharge of 6.27%. The data in that

set have not been (further) checked or corrected. That robustness analysis still results in a

significant cartel effect, but according to Prof. Schinkel and Dr Huberts the estimates are

less reliable.

6.25. Dr [name] argues — and Prof. Dr Schinkel and Dr Huberts agree — that the suitability

of a dataset (and thus of the one used in Schinkel & Huberts 2024) depends on the

following factors:

•

sample size: sufficient observations to accurately estimate the overcharge and to

include other relevant factors influencing prices;

information on key variables: the data contain sufficient information on the relevant

factors influencing prices;

•

accuracy of the data: variables are correctly recorded for each observation;

transparency: the data collection and sample selection processes are clear and

transparent;

•

the sample reflects the relevant population.

As explained above, Prof. Dr Schinkel and Dr Huberts consider that the dataset (sample)

they used meets those requirements, and they confirmed this at the hearing. Dr [name], on

the other hand, takes the view that:

•

the CDC dataset is too small given the wide variety of trucks, brands and markets in

the set;

•

information is missing in respect of truck costs and a number of truck characteristics;

several errors have been identified in the dataset;

there is a lack of transparency, because the data processing and the selection of the

dataset were not carried out by Prof. Dr Schinkel and Dr Huberts, but by CDC, and

some steps in the selection process are unclear;

•

representativeness cannot be verified.

Dr [name] concludes that it is preferable to use the data provided by the Truck

Manufacturers, as is customary and as was done, for example, in Royal Mail/BT v DAF

before the CAT.⁴⁶

6.26. The court notes at the outset that no dataset is without flaws. Prof. Dr Schinkel and Dr

Huberts have, for example, observed that the data used by the Truck Manufacturers’

experts (taken together) cover only part of the relevant countries; that in some sets only a

limited number of (technical) characteristics are (often) represented; and that the Cartel

period is not always fully covered (data from the early years of the Cartel in particular are

often missing — according to Prof. Schinkel and Dr Huberts, the analyses on average begin

in 2003 (rather than in 1997)); and data for a number of years during the infringement

period are sometimes also missing.

6.27. Nor is the argument put forward by the Truck Manufacturers — that it would be

better to conduct the regression analyses by brand and by country, as truck prices evolve

differently over time depending on the brand and country — convincing. First of all, Dr

[name] himself states that Schinkel & Huberts 2024 also takes into account “brand- and

country-specific effects”. Dr [name] does note that Prof. Dr Schinkel and Dr Huberts “do not

do this correctly”, but (the experts of) the Truck Manufacturers have not demonstrated that

and why this was not done correctly, despite the fact that they have had access from the

outset to all the data and codes used by Prof. Dr Schinkel and Dr Huberts.⁴⁷Furthermore,

the reports by the various economic experts of the Truck Manufacturers differ considerably

as regards differentiation by country. In any event, the economic experts of DAF,

Volvo/Renault and Scania have drawn up reports containing an analysis for five countries,

and the economic expert of MAN has produced a report containing an analysis for three

countries.⁴⁸The economic experts of DAF (Compass Lexecon) have stated the following as

regards the grouping of five countries: “For the purposes of this report, only trucks sold in

⁴⁶See footnote 13.

⁴⁷Schinkel & Huberts 2025a, p. 4.

⁴⁸Presentation by Schinkel and Huberts, 18–19 November 2025, slide 35.

Belgium, France, Germany, the Netherlands and Spain are considered. These markets are

sufficiently similar in terms of characteristics of the product mix and are deeply integrated

from an economic perspective.”⁴⁹RBB (on behalf of Scania) justified the choice as follows:

“First, because the use of a larger and more diverse set of data is expected to improve the

precision and the reliability of the results of any statistical analysis, and specifically of the

one presented in this report. Second, because the Settlement Decision finds a EEA-wide

infringement. As such, any price effects of such alleged conduct would be expected to

materialize via a measurement across all customers and across a number of countries.”⁵⁰

The argument of the Truck Manufacturers (as articulated by Dr [name]) that it is necessary

to carry out the regression analyses by brand and by country is difficult to reconcile with

this.

6.28. Prof. Schinkel and Dr Huberts have emphasised that they fundamentally disagree with

what they refer to as the “fragmentation strategy” deployed by the Truck Manufacturers’

economists. In their view, it must not be overlooked that the Cartel “was centrally

orchestrated and operated EEA-wide”. According to them, their “EU-wide price level

analysis” is therefore the correct approach, and it is appropriate “to analyze its potential

structural effects on truck transaction prices across the countries”. They are also able to do

so because they have the data from the CDC Assignors. They take the view that the

“fragmentation into brand-, country-, and buyer-specific analyses obscures the systematic

cartel price effect by focusing on idiosyncratic price variation, which was normal in truck

pricing”.⁵¹The court finds this to be a reasonable line of reasoning. Perhaps this explains

why the analyses by the Truck Manufacturers’ experts consistently produce results around

zero. As Prof. Dr Schinkel put it at the hearing: “If you zoom in far enough, you no longer

see the low and high tide. That is partly because you are breaking up the data with that

fragmentation.”⁵²

6.29. Dr [name] rightly points out that in the proceedings before the CAT, DAF’s dataset

was used (covering all trucks supplied by DAF in the UK during the relevant period, and not

just those supplied to Royal Mail/BT), both for the regression analysis carried out by DAF’s

expert and for those prepared by Royal Mail and BT. That argument does not, however,

persuade the court that this dataset is for that reason also the correct basis for the

regression analysis in this case. Firstly, it is remarkable that the use of that same dataset in

that case by all experts (there) led to completely different results (overcharge percentages)

which, even more remarkably, are more or less the same as those calculated in these

proceedings, on the one hand, by the experts of the Truck Manufacturers (close to zero (no

effect)) and, on the other, by Prof. Dr Schinkel and Dr Huberts (between 7.69% and

10.33%). The expert for Royal Mail and BT arrived at an average overcharge of 9.95% for

⁴⁹Schinkel & Huberts 2025a, p. 19.

⁵⁰Schinkel & Huberts 2025a, p. 22.

⁵¹Schinkel & Huberts 2025a, pp. 4, 7, 10, 15.

⁵²Appendix I to the report, p. 53.

Royal Mail and 11.1% for BT. Furthermore, the CAT also identified various data issues and

ultimately opted for the “broad axe” approach to estimate the overcharge percentage, inter

alia “given the substantial imperfections in the data available”.

6.30 Incidentally, as the court understands it, the experts in the proceedings in Norway

used the dataset of Posten (all trucks leased (and a few purchased) by Posten in Norway

from Scania, Volvo, Daimler, MAN and Iveco⁵³), which is many times smaller in scope than

that of CDC (1,674 observations), and the Norwegian court considered there, as regards the

analyses by the Truck Manufacturers (always based on the sales of their own trucks), “that

the regression analysis based on [truck manufacturers’] transactions must be given limited

weight in the overall assessment of the evidence on the question of whether Posten paid an

overcharge”.

6.31 At the hearing, Prof. Schinkel confirmed that the dataset used is “more than large

enough — almost 10 times the normal econometric standards” — and is also sufficiently

representative. The fact that it does not include any truck transactions purchased in the

United Kingdom, even though, according to Dr [name], 4% of all CDC trucks were

purchased there, does not appear to be sufficient to seriously undermine the

representativeness of the dataset.

6.32 Taking all this into account, the court finds that Prof. Dr Schinkel and Dr Huberts have,

even in the light of the criticism levelled by the Truck Manufacturers (and their experts),

sufficiently shown that the dataset used for Schinkel & Huberts 2024 is representative,

sufficiently large and accurate for the regression analysis carried out.

6.33 Furthermore, it is evident not only from Schinkel & Huberts 2024 itself, but also from

the CDC Trucks Data Guide used by CDC for the selection of the data (August 2024), that

extensive consideration was given, in consultation with industry experts, to which

technical characteristics should be represented in the dataset (resulting in a total of

thirteen, including the EURO standards (which, according to Prof. Dr Schinkel, are often

omitted from the Truck Manufacturers’ datasets)). The CDC Trucks Data Guide, August

2024⁵⁴states the following:

"2.2 Truck characteristics

Trucks have hundreds of technical characteristics. Many of these characteristics

varied over time, as truck manufacturers and component suppliers innovated.

The goal of statistical overcharge analysis is to distinguish the effect of illegal

collusion from other forces driving prices. Hence, a truck characteristic is

considered important if it is likely to significantly influence willingness to pay or

the truck's price. Using that standard, CDC asked experts in the truck market to

identify the most important truck characteristics.

⁵³Only 1% of all trucks.

⁵⁴Exhibit CDCR-0078, p. 4.

Early in the process, we consulted a former high-level sales executive from one of

the truck manufacturers. The expert, who has over a decade of experience in

commercial vehicle retail, today works as an independent consultant in the

logistics sector. We supplemented his answers and explanations with those from

DICE Consult GmbH, Lademann Consulting GmbH, and Hamburg Economics

GmbH, all of which are economic consultancies involved in modelling the truck

market in similar contexts as CDC. We also exchanged views on data and evidence

collection with Themis Schaden GmbH, a special purpose company founded out of

ELVIS-AG. ELVIS (“Europäischer Ladungs-Verbund Internationaler Spediteure”)

AG is Europe’s largest truckload association. Their case team (assembled in the

Themis Schaden GmbH) was recruited from ELVIS itself and from its members:

logistics companies with deep, typically decades-long experience in the truck

market. Moreover, to widen the somewhat German-centric focus, CDC conducted

its own market and product research and interviewed early assignors as well as

industry experts from other countries such as Denmark, France, the Netherlands,

Portugal and Spain. The industry experts were either specialised service

providers or consultancies for the road transport sector (e.g., VATSERVICES4 and

Carving Partners) or involved in the selling of trucks. Electronic questionnaires

filled in by a greater number of assignors later in the process were used to verify

that we did indeed capture characteristics that are price relevant for many truck

buyers."

Schinkel & Huberts 2024 also explains that and how sufficient account has been taken of

the diversity of trucks, brands and markets. By way of illustration, reference is made to the

following passages:

“We developed our econometric model specifications on the basis of

representative subsamples across truck brands and types, with data of high level

of granularity and quality. It contains numerous specifics on technical truck

specifications that are important for explaining the end prices of the trucks that

CDC’s assignors paid. A truck’s characteristics influence its manufacturing costs

and its buyer’s willingness to pay, which is relevant for the establishment of truck

purchasing prices. The full data set did not contain all this detailed information

for all trucks. The baseline econometric analyses are therefore performed on a

representative subsample that is as complete and accurate as possible on all

explanatory variables included in the regressions.”⁵⁵

“The European Commission Directive 2007/46/EC for the approval of motor

vehicles’ road admission describes an extensive number of key characteristics of

trucks. These include, apart from the truck’s brand by manufacturer: chassis type

(normal or low-deck), number and types of axles (powered axles and steered

axles), engine specifications (number and arrangement of the cylinders), engine

power (horsepower/kilowatt, displacement in cm3), body type (here tractor and

rigid), and permissible laden mass. Note that several of these technical

⁵⁵Schinkel & Huberts Report 2024, p. 14 (1.3).

characteristics go together is a truck – for example engine power typically

correlates with a truck’s capacity and permissible laden mass. For this reason, it is

not necessary to describe a truck by all of its features for the purpose of a

regression analysis – in fact, including too many related truck characteristics can

lead to overspecification, which introduces problems with robustness and

reliability of the econometric analysis. (…)”.⁵⁶

6.34 Finally, Prof. Schinkel and Dr Huberts explained in detail how the selection process

was carried out. The court does not regard it as a problem that this was done by CDC and

not by Prof. Schinkel and Dr Huberts themselves. Schinkel & Huberts 2024 refers to the

(above-mentioned) CDC Trucks Data Guide of August 2024, a “detailed memorandum”, in

which “CDC documented the precise steps taken in the collecting and preparation of the

data on their assignors’ truck[s], and the characteristics of the resulting data sets”.⁵⁷

Chapter 5 of this Guide does indeed, as Mr Möhlmann stated at the hearing, “clearly

describe how the representative dataset was compiled”.⁵⁸At the hearing, Prof. Dr Schinkel

confirmed, when asked, that the selection of the data took place under his and Dr Huberts’

supervision, and that they “extensively checked and contributed to the way in which this

should be done”. The various steps, including the final one from 5,075 to 4,873, have also

been explained in detail (see for this also 6.24.1).

Controlling for costs and truck characteristics

6.35 The parties agree that costs must be controlled for in the regression analysis. The

regression analysis must take into account various other factors that affect the variable

under investigation, including in any event the cost price.

6.36. In Schinkel & Huberts 2024, this is done by means of control variables:

“(…) we control for industry wide price drivers and developments over time in

the costs of manufacturing, such as country specific electricity prices, as well as in

available hauling capacity and developments in the demand for trucks. The latter

was amongst other things driven by demand for trucking services and available

transport capacity that relate to gross domestic product (GDP) and tonne-

kilometre (TKM), as well as technological and regulatory developments in trucks

over time. (…)”.

6.37 The control variables are taken from “known public, independent and reliable

sources”, including the “iron and ore price index, non-ferrous metals and ores price index,

labour cost index, electricity price” and gas price. Where possible, the costs have been

taken for the countries where the trucks were manufactured. With the exception of the iron

and ore price index and the non-ferrous metals and ores price index, which apply to the

⁵⁶Ibid., p. 25 (3.1).

⁵⁷Schinkel & Huberts Report 2024, p. 15 (1.3).

⁵⁸Exhibit CDCR-0078, p. 28 et seq.

EEA as a whole, all control variables were available on a country-by-country basis. Schinkel

& Huberts 2024 summarises the method used to control for production costs and demand

as follows:

“Both will have depended on changes in the technical truck specifications and

regulatory requirements. Also, many technical truck features will have jointly

determined manufacturing costs. For example would a higher emission standard

imply certain modifications to the engine or exhaust system. Other truck

specifications may not have changed much, despite having been a major costs

component, such as cabin type, which therefore is not included in the analysis. We

note, however, that we do not need or intend to estimate the absolute levels of

manufacturing costs: what matters for our assessment of cartel effects is changes

that may be alternative explanations for end prices changes than the breakup of the

cartel. For this, exogenous and not manufacturer-specific costs are appropriate –

and have the added benefit that they are external and pre-existing sources, which

are not likely to have been affected by the existence of the cartel, unlike production

cost series reported by the manufacturers.

On the basis of a combination of industry expertise and goodness of fit, reliability,

and explanatory power of our regression analyses (…) we have selected thirteen

relevant technical truck characteristics:

•

Two numerical variables on engine power: Power in kilowatt and Displacement

in cm3.

•

Eleven categorical variables (…): Brand, Type of truck, Emission norm,

Transmission, Chassis type, Wheels, Natural gas conversion kit, Aero package, Rear

steering axle, an Retarder.

These characteristics capture the core components that drive truck prices. While

other candidate variables, such as cabin type and exhaust system, are important

components of trucks too (…) they display little variation over the sample and/or

correlate strongly with the factors included.

For general manufacturing cost changes, we include:

•

Four numerical indicators for raw materials, labor and energy costs: Iron ore

price index, Non-ferrous metals and ores price index, Labor cost

index, and Electricity price.

The labor and energy cost factors are based on the countries where the trucks

were produced.

•

Overall changes in demand are captured by including:

GDP index as a control of demand based on the GDP indices of the countries in

which the trucks were ordered.

The availability of trucks is captured by:

•

TKM index, which included the country-specific TKM index for the countries in

which the trucks were ordered.

That is, we include six external control variables, so that the total number of

explanatory variables for truck prices is nineteen, plus the cartel dummy variable.”

6.38. According to the Truck Manufacturers, the indices and technical specifications used in

Schinkel & Huberts 2024 do not reflect the complexity of truck production, nor do they

capture the differences in cost trends between different trucks.⁵⁹After all, trucks are highly

heterogeneous products with differing technical characteristics; costs vary between brands

(the Truck Manufacturers) and between plants, and truck costs evolve over time, and at

different rates over time for different trucks, Truck Manufacturers and plants.⁶⁰The set of

thirteen truck characteristics is too limited; a number of important production inputs are

missing (for example electronics, plastics, software, IP and leather), and the economy-wide

indices cannot capture the differences in cost trends between trucks,⁶¹as Dr [name]

further explained at the hearing.

6.39. The Schinkel & Huberts 2025a report responds to this criticism as follows. All models

include “brand-specific fixed effects”, i.e. dummy regressors for each brand. This takes

account of factors such as brand loyalty or higher production costs. There is no indication

or evidence that there are different overcharge percentages per brand; on the contrary:

gross list prices were raised for all brands. It should also be noted that the method used in

Schinkel & Huberts 2024 can also result in a different nominal overcharge for different

brands, since prices differ as a result of the brand dummy regressors and other control

variables. Prof. Schinkel and Dr Huberts emphasise once more:

" The appropriate econometric approach in this case is to include brand fixed

effects, not sub-sampling. The brand heterogeneity is then controlled for. The

remaining variance in individual truck prices can be identified – together with the

other controls – around an EU-wide systematic price change. Note again that the

brand dummies control for a variety of possible reasons why the transaction

prices for brands may differ, including importantly also differences in

manufacturing cost on the supply side, but also difference in truck desirability

and thus their buyers’ willingness to pay for them on the demand side. The brand

dummy features in the hedonic regression as a truck characteristic, next to other

relevant technical characteristics of trucks that matter for production cost and

pricing."⁶²

⁵⁹Exhibit TRUC-0072, 2.5.

⁶⁰Presentation by Dr [name], 18–19 November 2025, p. 9.

⁶¹Ibid., p. 11.

⁶²Schinkel & Huberts 2025a, pp. 32–35.

6.40. The debate in the court documents, and certainly also at the hearing, has in fact

focused only to a very limited extent on the (alleged shortcomings in the) analysis in

Schinkel & Huberts 2024. The Truck Manufacturers merely state in general terms that

Schinkel & Huberts 2024 contains “fundamental methodological flaws”, but they scarcely

develop that assertion. In their summary of the case, the Truck Manufacturers argue first

and foremost for the use of their own datasets. They begin by asserting that the results of

the analyses by the Truck Manufacturers’ economists are “sound and reliable”, “which

cannot be said of the (estimated) overcharge” in Schinkel & Huberts 2024. They go on to

emphasise that the economic experts they have engaged verify the actual costs of a specific

truck as recorded in their internal systems. They also argue that the set of “(only) thirteen”

technical truck characteristics is too limited and unsuitable for adequately explaining

differences in costs between trucks. In their view, it is “simplistic to think that the impact of

costs on a complex product such as trucks can be captured by merely the seven

characteristics with which S&H attempt to account for those costs”. The public and

aggregated cost indices used in Schinkel & Huberts 2024 are, in the Truck Manufacturers’

view, a “fundamental flaw”, “clearly unrepresentative” and “demonstrably unsuitable

approximations” of the actual, specific and changing production costs of individual trucks.

Those, however, remain merely general assertions for which no further substantiation is

provided in the summary pleading (or supplementary pleading). Reference is made to

various Rebuttal Reports, but even those, as CDC has also argued with good reason, do not

actually address the alleged shortcomings in the analysis of Schinkel & Huberts 2024. As far

as the court can ascertain without itself delving into the details of those reports — which is

not the court’s task — this is indeed not the case. Even at the hearing, the discussion on the

substance of Schinkel & Huberts 2024 remained limited. It has consistently been argued

that the thirteen technical characteristics are too limited, but what specifically is missing

and why that is a problem has not been clearly set out. That is so notwithstanding the fact

that, as set out in 6.33 above, CDC has conducted extensive and in-depth research into the

various characteristics of trucks. The Truck Manufacturers have not engaged in any

substantive way with that research. The same applies to the control variables for

production costs, such as raw materials. At the hearing, it was observed once more that

plastic and leather are also used in trucks, and whilst that appears to be correct, no

explanation whatsoever was offered as to why the omission of a price index for leather

and/or plastic would distort the analysis in Schinkel & Huberts 2024 and lead to an

(excessive) incorrect overcharge. No attention was paid to the other production inputs

that, according to the Truck Manufacturers, were missing (see 6.38). Furthermore, the

Truck Manufacturers have tweaked (the scale of) a graph⁶³in order to show that the cost

indices used in Schinkel & Huberts 2024 are not in line with actual truck costs (whatever

those may be — more on that later), but this is not convincing. During the presentation of

that graph, an image was also shown illustrating that the cost fluctuations in the Schinkel &

Huberts 2024 model (as had already been stated in the summary document) have no

⁶³Presentation by Dr [name], 18–19 November 2025, p. 13.

statistically significant impact on prices, which, according to Dr [name], would run counter

to economic expectations:

It is not entirely clear to the court what Dr [name] is seeking to demonstrate here. In the

first place, this concerns the “labor cost index, non-ferrous metals and ores price index,

electricity price” and the “iron ore price index”, and it seems obvious that the costs of

labour, metals, iron and electricity (may) influence the cost price of a truck. Furthermore,

at the hearing Dr Huberts explained that the mere fact that these variables are not

statistically significant does not prove that the correct variables were not included in

Schinkel & Huberts 2024. With reference to the Agree/Disagree statement, he pointed out

that the experts of both parties agree that even insignificant parameters contribute to the

explanatory power of the model. In his view, it is in fact sensible to include such variables

precisely in order to avoid omitted-variable bias.

6.41. The Truck Manufacturers further submit that Gross Domestic Product (GDP) is not a

suitable general demand variable for all countries. The Truck Manufacturers’ economists in

general agree with Prof. Dr Schinkel and Dr Huberts that the development of tonne-

kilometres of road transport (TKM) in a given country may be a relevant factor to consider

when estimating a potential price increase, but they go on to argue that the relationship

between TKM and truck prices predicted by Prof. Dr Schinkel and Dr Huberts is incorrect.

Consequently, according to the Truck Manufacturers, Schinkel & Huberts 2024 does not

adequately take account of developments in the demand for trucks. That criticism is also

addressed in more detail in Schinkel & Huberts 2025a:

“(…) The TKM-index is a measure for weight road freight transported as collected by

Eurostat – i.e. a measure of transportation activity with trucks. The consultants

emphasize their findings (…) as showing a positive sign for their TKM-measure

parameters, whereas our results indicate a negative sign. They subsequently try to

twist it as if we switched interpretation of the role of TKM from being a demand

control – as the consultants had always interpreted it: truck demand up, truck prices

up – to being a ‘supply’ control.

(…)

This, however, is false and misrepresents what we explain in our report. Higher

current supply is a result of previous investments in fixed inputs, i.e. new trucks and

trailers. TKM indices thus represent a trailing indicator of truck purchases, where a

higher current index is the result of an increase in past truck purchases. Demand for

road freight transport is affected by economic activity measured by GDP. Thus, if

economic activity stays level but TKM increases, firms are not incentivized to

purchase trucks as existing capacity is (more than) sufficient. Higher TKM levels will

thus, ceteris paribus, lead to a lower demand for new trucks. (…)

After correcting for relevant macro-economic developments through GDP, TKM is a

clear measure of current trucking services supply – or capacity, with another term.

(…) Ceteris paribus, when the supply of transportation services is already large, and

indeed close to demand, so that there is little unmet demand, the demand for

additional trucks, which are fixed production factors to produce more

transportation services with, should be expected to decrease. This explains why

TKM has a negative effect on truck prices: as TKM increases, the supply of trucking

services rises, which induces demand for trucks to fall, truck purchases fall, hence

process decline.”

The court regards this as a reasonable explanation.

6.42. Nor does the court agree with the Truck Manufacturers’ argument that a better — or

indeed the only correct and customary — way of controlling for costs and truck

specifications is to verify the actual costs of a specific truck as recorded in the internal

systems of the relevant Truck Manufacturer(s). Prof. Dr Schinkel and Dr Huberts have

pointed to various problems that arise when those actual costs are used. The court

mentions a few of the most striking ones:

(i) it is not clear how the actual costs used by the Truck Manufacturers’ economists in

their analyses were arrived at (they were compiled from the Truck Manufacturers’

own systems by the Truck Manufacturers themselves; Prof. Schinkel and Dr Huberts

have not seen any raw data); the cost series contain fixed cost components and other

cost components that do not belong there; there are significant differences between

the Truck Manufacturers themselves; and cost data for certain periods is sometimes

missing, meaning that the entire infringement period is not covered;

(ii) the way in which the cost series are constructed (in dependence on prices) inevitably

leads to endogeneity; that is to say (as Dr Huberts explained at the hearing): “Costs

influence the price, but at the same time the price also influences the cost variables,

creating a feedback mechanism via volume allocation and price-related cost

components”;

(iii) there is a risk of x-inefficiencies: because in a cartel, in the absence of competitive

pressure, there are fewer incentives to reduce costs, these x-inefficiencies can lead to

increased and therefore distorted costs;

(iv) there is a risk of multicollinearity: this occurs when the explanatory variables are too

highly correlated with one another, causing the regression estimates to become

unstable. The way to measure this is by means of the Variance Inflation Factor (VIF).

The reports of the Truck Manufacturers generally contain little or no information on

multicollinearity. According to Prof. Schinkel and Dr Huberts, multicollinearity in the

various regression analyses is exceptionally high.

6.43. These are serious (potential) issues with the cost datasets used by the Truck

Manufacturers’ economists in their analyses. At the hearing, Dr [name] sought to persuade

the court that these issues do not arise, but he was unable to allay the concern that they do.

The Practical Guide also warns of some of these issues:

“Where accounting data are available, adjustments may be necessary given that

the notions of costs in accounting terms can differ from the notions of costs in

economic terms.” (109)

“It may occur that the observed production costs during the infringement are not

representative of the production costs that would have been likely without the

infringement. (…) first, in the event of infringements of Article 101, companies

which due to their collusive behaviour are not subject to the competitive pressure

that would exist in the non-infringement scenario may operate less efficiently and

therefore generate higher production costs than under competitive pressure. (…)”

(110)

6.44. Nor does the argument that it is customary to rely on manufacturers’ (cost) data carry

any weight. The Truck Manufacturers are correct in stating that this was also done in the

proceedings before the CAT (Royal Mail/BT v DAF). The CAT did indeed hold: “Our

conclusion is that the impact of the infringement that is found at the level of DAF’s UK

prices as a whole can reasonably be applied to the Claimants’ purchases” (345). However,

as already mentioned, the CAT ultimately concluded that it had to estimate the overcharge

percentage, inter alia, “given the substantial imperfections in the data available”. The

Borgarting Court of Appeal also found the data from the truck manufacturers to be of

limited reliability and usefulness, and highlights broadly the same issues as those identified

by Prof. Dr Schinkel and Dr Huberts. With respect to the analyses by Volvo’s experts, it

considered as follows:

“(…) the Court of Appeal believes that it weakens the evidentiary value of the

regression analyses that, for the so-called post-period (…), are based on data

retrieved from an internal system (…) from a period when Volvo was aware that

the Group risked claims based on allegations of overpricing” (p. 55)

"He [the expert witness] argues that this may suggest that the mechanism could,

in principle, have worked the other way round; that sales prices for the trucks

influenced how Volvo managed costs within its internal system. He emphasised

that using Volvo’s own costs as a key economic variable in the analysis presents a

methodological problem. This is because the costs themselves may be influenced

by the existence of price-fixing. This is described as costs being an endogenous,

rather than an exogenous, variable.

The Court of Appeal agrees with the criticism (…). The Court of Appeal also notes

that one possible factor during the period in which Volvo participated in the

price-fixing may have been that Volvo had less incentive than others to reduce

production costs for trucks. (…)" (p. 55)

“(…) The cost measures in Volvo’s data set are not merely objective, verifiable

costs. It is clear that they also include an element that has nothing to do with costs

at all, referred to as a ‘Price Management Surcharge’ (PMS). Volvo’s cost measures

also include both fixed and variable costs. (…) In the case of fixed costs, the Court

of Appeal is of the opinion that, in general, there will be considerable room for

discretion in relation to the allocation to different types of products. The fact that

Volvo’s cost target is structured as it is makes it difficult to verify the cost target

as an economic variable in the model. This applies even if Volvo provides insight

into the underlying figures.” (p. 56)

All of this ultimately leads to the following conclusion by the Court of Appeal:

“that the regression analyses based on Volvo transactions must be given limited

weight in the overall assessment of the evidence on the question of whether

Posten paid an overcharge. (…) these analyses are not a strong argument that

there was no overcharge at all.” (p. 58)

The Court of Appeal applies similar reasoning to the cost data used by the other truck

manufacturers and reaches the same conclusion for all analyses based on those data.

6.45. All in all, the Truck Manufacturers have failed to persuade the court that Schinkel &

Huberts 2024 is, in short, based on incorrect assumptions or contains material

shortcomings in the controlling for costs and truck characteristics. The Truck

Manufacturers have also failed to persuade the court that more reliable results would be

obtained if the Truck Manufacturers’ own data were used.

Customer characteristics and bargaining power

6.46. The Truck Manufacturers argue that Schinkel & Huberts 2024 (wrongly) fails to take

into account that the bargaining power of truck buyers was structurally greater after the

Cartel than during the Cartel. According to Prof. Schinkel and Dr Huberts, there is no

evidence whatsoever for this. Firstly, they point out that, both during and after the Cartel,

truck buyers negotiated the price of the trucks with staff of the Truck Manufacturers (the

sales departments and/or dealers) who were not themselves involved in the Infringement,

and that the processes were therefore in principle the same both during and after the

Cartel. Nor, according to Prof. Dr Schinkel and Dr Huberts, does the fact that buyers

(possibly) bought more trucks after the Cartel than during it mean that bargaining power

increased. There may be various reasons for increased volumes. It may, for instance, be

that truck prices fell after the end of the Cartel (in that sense, bargaining power could have

been endogenously influenced before the Cartel). Nor does the “size of buyer” indicator

used by the Truck Manufacturers’ economists (measured by the number of trucks

purchased per Assignor) point to increased bargaining power; on the contrary, according

to Prof. Dr Schinkel and Dr Huberts. They investigated this and concluded that, when

measured in this way, there was slightly greater bargaining power during the Cartel than

afterwards: the average number of trucks purchased per Assignor was (rounded) 637

during the Cartel and (rounded) 584 after the Cartel. Finally, Dr Huberts explained at the

hearing that the existing literature does not provide a clear-cut answer as to what effect

bargaining power has on prices and how that mechanism works. The price is the result of

complex interactions between buyer and seller and is influenced by a wide variety of

factors, including the buyer-seller relationship and expectations.

Dr [name] countered at the hearing only that, as a general rule, it may be assumed that

large customers are able to negotiate lower prices, and he used a graph to show that there

were more large customers in the CDC dataset during the Cartel than after the Cartel.

6.47. Against this background, the court is not persuaded that a difference in bargaining

power has (significantly) distorted the analysis in Schinkel & Huberts 2024.

End date of the Cartel and run-off period

6.48. The formal end date of the Cartel (as established by the Commission in the Decision)

is 18 January 2011. Schinkel & Huberts 2024, however, argue that the effective end date of

the Cartel is 28 June 2010. According to Schinkel & Huberts 2024, the run-off period lasted

until 30 May 2013. According to Prof. Schinkel and Dr Huberts, that is a conservative

estimate, as their model indicated 24 September 2015. Because the latter date is close to

the introduction of the EURO VI standards, they regard it as unreliable.

6.49. According to Schinkel & Huberts 2024, the effective end date of a cartel must be

determined empirically by identifying patterns in price trends over time that indicate a

structural change attributable to the (start or) end of the infringing conduct. That is what

Prof. Schinkel and Dr Huberts have done:

“We analyze the truck purchasing data to determine what were the dates at which

the European trucks market appears to have returned to normal competition and

the cartel effect had dissipated. That is, we do not assume that the cartel

effectively ended with the dawn raid by the Commission or at any approximate

date following (or preceding) it. Instead, we apply established econometric

methods to analyze where there are structural breaks in truck prices, indication

regime shift from collusion to competition. These structural breaks in the data

indicate structural changes in the prices over time due to concurrent events, and

thus allow us to identify the effective end date of the cartel, that is, when the

cartel agreements started to cease to have an impact on prices, as well the extent

to which the cartel effect on process had substantially diminished.”

At the hearing, Prof. Schinkel explained, with reference to this figure,⁶⁴that the focus is

primarily on the period around where the black line is drawn, and that they were able to

establish empirically, using the structural break test, that the effective end date is 28 June

2010.

6.50. According to Schinkel & Huberts 2024, it is of great importance to determine

accurately the effective end date of a cartel (and the run-off period) by means of what they

term the “structural break test”:

“(…) Misspecification of the effective cartel end date(s) and the transition period

introduces a mislabeling of prices around the cartel end date chosen as either

competitive where they are actually collusive, or collusive when they are actually

competitive. Misdating, including by modelling the transition process from

collusive to competitive prices with less sophistication than the actual cartel

dynamics, is expected therefore to lead to a (weak) overestimation of the but-for

prices, which implies an underestimation of the cartel price effect.”⁶⁵

6.51. The (economic experts of the) Truck Manufacturers do not actually engage with the

calculations or methodology applied in Schinkel & Huberts 2024, but, as the court

⁶⁴Slide 20.

⁶⁵Schinkel & Huberts 2024 refers to Boswijk et al., Journal of Applied Econometrics, 2018.

understands it, take the view that, from an economic perspective, the end date of the

Infringement as established by the Commission must also serve as the starting point for the

during-and-after analysis. According to Dr [name] as well, it is “common practice” to take

the start and end dates set by the Commission as the “natural starting point of the

infringement effect”.⁶⁶The Truck Manufacturers argue that the method in Schinkel &

Huberts 2024 is “not objective, flawed” and that it does not control for the relevant factors

influencing price, and that Prof. Dr Schinkel and Dr Huberts “thus deviated from the official

and legally binding end date of the infringement period without a plausible economic

explanation”.

6.52. Prof. Schinkel and Dr Huberts go on to explain that the dates they have empirically

established are also consistent with the facts: (i) in the summer of 2010, MAN submitted its

leniency application, and (ii) until the introduction of EURO VI, the gross list prices were

still based on the EURO V standards (which were already in force during the Cartel). They

illustrate this by the following figure, based on the gross list prices they found in the DAF

data:⁶⁷

6.53. The court is not itself able to determine the correct (effective) end date of the Cartel,

but it regards the reasoning underpinning the end date established by Prof. Dr Schinkel and

Dr Huberts as sound. In so far as the position of the Truck Manufacturers is to be

understood as meaning that it is customary, and (therefore) best, to take the end date set

by the Commission as the starting point for the during-and-after analysis, the court does

⁶⁶Exhibit TRUC-0072, 5.3.

⁶⁷Slide 25.

not follow them in that respect. The Practical Guide also states that the start and end dates

of a cartel are not always clear.⁶⁸The court also finds the factual explanation given by

Prof. Dr Schinkel and Dr Huberts for the end date to be understandable.

Conclusion as to the run-off period

6.54. As regards the run-off period, the court must take a decision. It will align with the

period established by Prof. Schinkel and Dr Huberts and will find that the run-off period

continued until — and thus ended on — 30 May 2013. That is justifiable, because it is

understandable that the gross list prices continue to affect the final prices for a longer

period, and that date more or less coincides with the introduction of EURO VI, the moment

at which new gross list prices were expected to come into effect. Furthermore, so far as the

court can assess, that date appears to be consistent with the empirical analysis carried out

by Prof. Dr Schinkel and Dr Huberts. The Truck Manufacturers have, on the other hand,

given no reasons for proposing a different date for the end of the run-off effect.

Conclusion on the overcharge percentage

6.55. Taking everything into account, Schinkel & Huberts 2024 can, with all the

uncertainties inherent in any regression analysis, serve as a sound basis for the court’s

estimation of the overcharge percentage. The court must make a decision and, having

regard to all of the above, sets the overcharge percentage at 7%.

7. Volume of commerce

7.1. The issue of the volume of commerce concerns the question of for how many truck

transactions CDC can claim damages in these proceedings on behalf of the Assignors. In

order to answer that question, it must be assessed for which truck transactions CDC has, in

the light of the objections raised by the Truck Manufacturers, sufficiently substantiated that

an Assignor entered into a transaction falling within the scope of the Infringement.

7.2. Of the transactions on which CDC bases its claim, according to the Truck

Manufacturers’ most recent tally, 25,464 truck transactions are no longer disputed, whilst

6,958 transactions remain in dispute. In their latest count, the Truck Manufacturers arrive

at slightly different figures of approximately 25,500 recognised (uncontested) transactions

and 6,395 contested transactions.

Lack of a joint overview of disputed transactions

7.3. At the case management hearing on 3 June 2025, the court reached the following

agreement with the parties:

"Agreement on volume of commerce (burden of assertion)

⁶⁸Practical Guide, Nos 43–44.

2.9. With regard to the volume of commerce, it has been agreed with the parties

that they will determine, by mutual agreement, which truck transactions they

agree fall within the scope of the Infringement and that these have been

sufficiently substantiated by CDC and can be adequately identified. The court will

have to rule on the truck transactions on which they do not agree. The parties

shall draw up a list of those truck transactions in which the parties’ positions

(substantive and, where necessary, procedural) are set out in a manner that is

clear to the court. The approximately 23,000 truck transactions that may fall

within the run-off period may be excluded from this list, as the court will first

decide whether there is a run-off period and, if so, how long it lasts."

7.4. The parties have not succeeded in drawing up the statement referred to above jointly.

Instead, on 29 October 2025 they each filed submissions accompanied by their own lists of

contested and uncontested transactions. In doing so, each party used its own format. As a

result, the lists are not readily comparable and, all things considered, the situation

regarding the volume of commerce is anything but clear to the court. The court therefore

finds that the parties have failed to comply with the agreement reached. The court will

accordingly base its assessment of the volume of commerce on what the parties have

argued on this subject in their pleadings and at the oral hearings. The exhibits in Annexes

1a and 1b from CDC and Exhibit TRUC-0071 to the supplementary submissions of 29

October 2025 will not be taken into account in the assessment, except in so far as they

contain positions that the parties have also advanced in their pleadings or at the oral

hearings.

7.5. The court will first outline below, and in so far as relevant to the assessment, the

course of the debate concerning the burden of assertion regarding the volume of

commerce.

Burden of assertion regarding volume of commerce

7.6. At the case management hearing on 19 December 2018, it was agreed that the debate

on the burden of assertion would be held first and that, on that basis, the Claimants

(including CDC) might be given the opportunity to amend their statements of claim.

Subsequently, in its interlocutory judgment of 15 May 2019 (the first judgment on the

burden of assertion), the court held that the Claimants could be expected to specify, in

support of their claims, which trucks they had purchased, hired, leased and/or used during

the relevant period, and how they had come to purchase, hire, lease and/or use them

(specifically, when, how and from whom the trucks were purchased, hired, leased and/or

came into use) and, where ownership, hire, lease or mere use had already ended during the

Cartel period or the run-off period, how and when that had ended. All of this was to be

done before the Truck Manufacturers submitted their statements of defence. The court also

considered that the arguments could subsequently be further elaborated and

substantiated, if necessary, depending on the Truck Manufacturers’ defence. The litigation

vehicles (such as CDC) were to satisfy that obligation on behalf of the Assignors.⁶⁹

In compliance with that order, CDC further substantiated its claims by procedural

submission of 18 September 2019, following which the Truck Manufacturers filed their

statement of defence on 1 July 2020.

7.7. In their statement of defence, the Truck Manufacturers explained that they had

instructed FTI Consulting LLP (hereinafter: FTI) to extract and analyse the data submitted

by the claimants in the CDC proceedings that had not yet been excluded from Group 1. In

view of the volume and complexity of the data, the Truck Manufacturers, in consultation

with FTI, opted for a phased approach. The Truck Manufacturers’ phased approach is as

follows:

Trucks excluded on the basis of what has not been established

(a) For all transactions, the Truck Manufacturers assessed whether the Claimants had

satisfied the initial burden of assertion.

Trucks excluded on the basis of what has been asserted or submitted

(b) For all transactions, the Truck Manufacturers determined whether they already fell

outside the scope of the Decision on the basis of the Claimants’ own assertions in the

transaction overviews.

(c) For the transactions remaining after step (b) for which the Claimants had provided a VIN

and for which supporting evidence had been submitted, FTI and the Truck

Manufacturers analysed the evidence submitted by the Claimants.

(d) For the transactions remaining after step (c), the Truck Manufacturers used their own

available sales data to ascertain whether the transactions fell outside the scope of the

Decision.

7.8. With regard to CDC, the Truck Manufacturers noted in step (a) that the burden of

assertion had not been satisfied in only 159 of the 59,690 transactions. In step (b),

according to the Truck Manufacturers, there were 23,681 transactions — almost 40% of

the total — which fell outside the scope of the Decision.

7.9. Under step (c), the Truck Manufacturers, with the assistance of FTI, carried out a

preliminary document review of the evidence submitted by the Claimants. That review is

limited to transactions (i) for which the Claimants have provided a Vehicle Identification

Number (VIN) and (ii) which do not already fall outside the scope of the Decision on the

basis of the information provided by the Claimants in the Transaction Overviews (step (b)).

In the document review, the following questions were asked for each transaction:

⁶⁹ECLI:NL:RBAMS:2019:3574, paras 3.26 and 3.27.

Transaction Document Validation

(a) Has written evidence been submitted in respect of this transaction and, if so, does that

evidence include one or more transaction documents? Transaction documents are

understood to mean invoices, lease agreements, order confirmations and other

documents intended to document the purchase, hire or lease of a truck. According to

the Truck Manufacturers, documents other than transaction documents do not provide

sufficient evidence of the transactions to which the Claimants’ claims relate.

VIN/Chassis Number Validation

(b) Does at least one of the transaction documents submitted for a specific transaction

contain the VIN or chassis number as provided by the Claimant in the Transaction

Overview? If not, the Truck Manufacturers consider that insufficient evidence has been

submitted.

Used Vehicle Validation

(c) Does any of the transaction documents indicate that the truck was purchased second-

hand? If so, the transaction falls outside the material scope of the Decision. The

reviewers have been instructed to classify a truck as second-hand if the transaction

document unambiguously states that it is a “second sale” or uses similar wording, or if,

according to the transaction document, the truck has travelled more than 5,000

kilometres (except in the case of Daimler, which also classified as second-hand

vehicles with a mileage of between 0 and 5,000 kilometres).

Claimant Name Validation

(d) Does at least one of the transaction documents contain the name of the buyer or lessee

as stated by the Claimants in the Transaction Overviews or, if that name is missing, the

name of the Assignor? If not, then on the basis of the transaction documents submitted

and without further explanation from the Claimants, it cannot be assumed that the

party in question purchased or leased the truck.

7.10. In step (d), the Truck Manufacturers made the following general observations:

(a) The Truck Manufacturers identify a truck in their systems on the basis of the VINs

provided by claimants. If the claimants did not provide a VIN at all, the Truck

Manufacturers were therefore unable to trace the truck in question. In some cases, this

was possible with an incomplete VIN, by combining the incomplete VIN with other

details such as the make of the truck. However, not all Truck Manufacturers have this

capability. Even if the Claimants have provided a complete 17-character VIN, this does

not mean that the truck can always be found in the Truck Manufacturers’ systems. In

the first place, those systems are not comprehensive. Secondly, the VIN may be invalid,

for example because the Claimants have entered the VIN incorrectly in their

Transaction Overviews.

(b) Even if the Truck Manufacturers can trace a particular truck in their systems, those

systems do not necessarily contain information on the transaction asserted by the

relevant Claimant. Second-hand sales, for example, generally do not appear in the

Truck Manufacturers’ sales records. Furthermore, some Truck Manufacturers operate

through a network of (among others) independent dealers, who purchase the trucks

from the relevant Truck Manufacturers and subsequently sell them on to end users.

(c) Due to the time that has elapsed since the Infringement Period, the Truck

Manufacturers’ sales data are no longer complete.

(d) In view of the above, this is a preliminary analysis. The Truck Manufacturers reserve

the right to put forward further defences at a later stage, should there be cause to do

so, based on a more comprehensive analysis of their sales data.

7.11. In their statement of defence, on the basis of that document review, the Truck

Manufacturers disputed 38.2% (13,771 trucks) of the transactions alleged by CDC.

7.12. On 28 February 2024, the court handed down a further interlocutory judgment

concerning the burden of assertion (the second judgment on the burden of assertion).⁷⁰

Among other things, it held that an additional round of written submissions was necessary

to give the Claimants the opportunity to respond to the information provided by the Truck

Manufacturers and to supplement it where necessary and possible. The intention was for

the Claimants to substantiate all truck transactions for which they were claiming

compensation as thoroughly and specifically as possible (with supporting documents), so

that the extent of the Claimants’ claims (and in particular those of the Assignors) would be

as clear as possible and the Truck Manufacturers would know what they had to defend

themselves against.

7.13. In response to the question raised by the Truck Manufacturers as to what information

may serve as sufficient evidence, the interlocutory judgment states that the court has not

yet ruled on:

"(i) what information is required as a minimum and/or (ii) what the

consequences are for the referral to the damages proceedings if (for certain truck

transactions) no information, or not all information, is provided. The court merely

instructs the Claimants to produce all available information (data) relating to each

truck (transaction) in the proceedings (in particular the VINs). (…) In order to

satisfy the burden of assertion (‘which trucks (of which make) were acquired,

when and from whom, in short’), it appears appropriate that the following details

be provided for each truck (transaction):

i)

ii)

(correct/complete) VIN (or chassis number);

make;

iii) type of transaction (purchase, hire, lease or other form of use);

iv) name of the customer (purchaser, hirer, lessee or user);

v)

name of seller, hirer, lessor or provider;

⁷⁰ECLI:NL:RBAMS:2024:1119.

vi) (maximum permitted) weight of truck;

vii) new or second-hand;

viii) date of transaction;

ix) country where the transaction (purchase, hire, lease) took place (country of the

Customer) / country of the seller, hirer, lessor or provider;

x)

when the ownership, hire, lease or mere use has ended.

(…) In so far as the Truck Manufacturers contest the claims, the Claimants will

have to provide further evidence to support their assertions (and the information

provided), where possible with supporting documents. It is obvious that this

should be done by means of what the Truck Manufacturers have termed

‘transaction documents’ (…), which can be linked to the truck (transaction) for

which a Claimant/Purchaser is claiming compensation. However, the court cannot

require the Claimants to substantiate their assertions in any specific manner

(with specific documents), and given the passage of time, it is also understandable

that not all ‘transaction documents’ are still available."

7.14. Following the separation of the CDC proceedings by the court’s decision of 17 July

2024, CDC complied with the order set out in the second judgment on the burden of

assertion (stelplicht) requiring it to produce further evidence, by filing a supplementary

written submission and reply on 6 August 2024. It made additions and corrections to the

transactions previously set out and removed 344 truck transactions from its dataset. CDC

observed that the Truck Manufacturers had made no observations in their statement of

defence regarding 20,156 transactions under steps (a) to (d). In addition, CDC added 727

truck transactions to its overview. Furthermore, CDC included in the transaction overview

a response for each individual truck transaction in respect of which the Truck

Manufacturers had raised a defence under points (a) to (d).

7.15. On 13 November 2024, the Truck Manufacturers responded to CDC’s pleading in their

statement of defence, supplementary submissions and reply regarding the truck

transactions. Following CDC’s amendments, they then applied steps (c) and (d) to various

transactions that had initially been excluded at step (b). The Truck Manufacturers

maintained their phased approach and extended the analysis with what they refer to as the

Extended Administrative Check. This introduced, between steps (b) and (c), an

intermediate step in which an attempt was made to verify the existence of the transactions

alleged by CDC in the Truck Manufacturers’ available sales data, using the VIN and

customer details provided by CDC. In the Extended Administrative Check, the Truck

Manufacturers were able to verify the existence of the transaction alleged by CDC in 17,924

of the 35,787 trucks remaining after step (b). In 17,863 cases, that was not possible.

According to the Truck Manufacturers, that may be because the alleged purchase by the

alleged buyer never actually took place, or because the Truck Manufacturers’ sales data are

incomplete. Furthermore, some Truck Manufacturers sell the vast majority of their trucks

to independent dealers, meaning that the name of the end buyer is by no means always

recorded.

Proper procedural order and the right to be heard

7.16. In response, CDC has argued that the Extended Administrative Check has led the

Truck Manufacturers to partially withdraw their defence under step (c) for transactions in

respect of which they now acknowledge that the Assignor is registered in their records,

only to adopt new positions on more than 2,000 of those truck transactions by adding new

defences to points (c) and (d). This includes, amongst other things, 630 truck transactions

on which they made no observation whatsoever in their statement of defence and which

they had already accepted as part of the claim.

7.17. The court must consider whether, as CDC argues, the Truck Manufacturers raised

these new defences too late. The Truck Manufacturers do not dispute that they have put

forward new defences in respect of truck transactions for which they did not raise a

defence in their statement of defence, and that they have added new defences to

transactions that were previously contested. They take the view that this is permissible and

that their investigation went further than would normally be expected of a defendant. They

were confronted with an enormous volume of data and made efforts to match it with their

own data, in the course of which they had been accommodating. The Truck Manufacturers

point out that their further investigation has led to a large proportion of the truck

transactions now being acknowledged (or at least no longer disputed).

7.18. The court notes, first of all, that the Truck Manufacturers’ conduct is not in line with

the court’s instruction that they were required to file a full statement of defence. The court

made this clear in an email of 8 July 2019, as shown in the following quotation:

"Contrary to what the Truck Manufacturers believe they can infer from the

judgment, the court did not mean a rejoinder, but a full statement of defence. (…)

The question of how detailed the defence must be depends on how fully the

Claimants’ arguments are set out in the pleadings they are to submit. It is not for

the court to interfere in advance with the content of the defence or to provide

guidance in that regard.

The next step in the proceedings is therefore for the Claimants to file a statement

on the court roll of 18 September 2019, as provided in the judgment of 15 May

2019. The case will then be placed back on the roll so that the Truck

Manufacturers can file a full statement of defence. The court wishes, on the basis

of the statement of defence, to ascertain the points on which the Truck

Manufacturers intend to defend themselves, before decisions are taken regarding

the further (possibly phased) conduct of the proceedings."

7.19. The Truck Manufacturers were subsequently given the opportunity to indicate the

timeframe within which they could file their statement of defence. In their procedural

submission of 2 October 2019, they state: “Following that correspondence, your court

informed the parties by email on 8 July 2019 that it intends for the Truck Manufacturers to

submit full statements of defence (in all these cases) in which they, amongst other things,

respond to the information submitted by the Claimants on 18 September 2019”. The Truck

Manufacturers were therefore aware that they were required to file a full statement of

defence, and that they were required in it to respond to the information submitted by the

Claimants. It is inconsistent with this course of events that the Truck Manufacturers, in

their pleading of 13 November 2024, put forward new defences which they could have

raised in their statement of defence on the basis of the information provided by CDC on 18

September 2019.

7.20. The fact that it was only decided at a later stage of the proceedings to conduct the

damages assessment in the main proceedings themselves, and that at the relevant time the

matter still concerned a referral to damages proceedings, does not alter this. Following the

first judgment on the burden of assertion, it was clear to the parties that the court expected

the Claimants to substantiate their claims concretely, and the court’s email of 8 July 2019

reiterated (as is also apparent from the general rules on pleading and denial) that the more

concretely the claims are elaborated, the more is expected of the defence. The Truck

Manufacturers therefore knew what was required of them, and they were also given (and

took) the opportunity to indicate themselves how much time they needed for this.

7.21. Not only is the Truck Manufacturers’ conduct at odds with the instruction that they

were required to file full statements of defence, but they have also raised the new defences

too late, contrary to the proper conduct of proceedings and the principle of the right to be

heard. The first judgment on the burden of assertion provides that, following the

statements of defence, assertions may, “depending on the Truck Manufacturers’ defence”,

be further elaborated and substantiated if necessary. Subsequently, in the second judgment

on the burden of assertion, CDC was given the opportunity to further substantiate the

“disputed claims”. This is incompatible with the fact that the Truck Manufacturers, in their

submission of 13 November 2024, once again raise numerous new defences, including in

relation to transactions which were not mentioned at all in the statement of defence. The

Truck Manufacturers appear to assume that the playing field was fully open after each

round of completion on the other side, and that they were free to subject all transactions to

further analysis after each round. The court did not grant such scope, and that premise is

not in accordance with the general rules of procedural law. The fact that there is a large

volume of data and that the further investigation led to a higher proportion of

acknowledged claims does not alter this. The judgments on the burden of assertion show

that the scope of the proceedings was progressively narrowed down to the transactions in

dispute at the time. That the Truck Manufacturers reserved the right, in their statement of

defence, to put forward further defences based on further analyses of the evidence

submitted, does not avail them here. They did not have that right, and they could have

known as much.

7.22. This means that the defences raised by the Truck Manufacturers in the submission of

13 November 2024 concerning truck transactions which were not contested in the

statement of defence will not be taken into account in the assessment. The same applies to

the new defences raised in that pleading which, after further analysis, have been added to

previously contested transactions but which do not constitute a response to the CDC’s

further substantiation. In other words, it is the defences that the Truck Manufacturers

could have raised in their statement of defence that are excluded from the assessment. This

means that new defences which are a response to the further substantiation of transactions

provided by CDC in its written submission of 6 August 2024 are taken into account.

727 new transactions

7.23. At the case management hearing of 3 June 2025, it was decided that the 727 new

transactions set out by CDC in its submission of 7 August 2024 form part of the

proceedings. The Truck Manufacturers raised no defence in respect of those transactions

until Exhibit TRUC-0071, filed on 29 October 2025. According to CDC, this involves 246

defences relating to those 727 truck transactions and 261 new defences relating to truck

transactions to which the Truck Manufacturers had already responded in their submission

of 13 November 2024. As considered above at 7.4, the court disregards Exhibit TRUC-0071

because it does not comply with the agreement reached at the case management hearing of

3 June 2025. The defences contained in that exhibit against the 727 truck transactions, and

the new defences concerning previously disputed transactions, are therefore also excluded

from consideration.

7.24. The court wishes to make clear that, even if this evidence had complied with the

agreement reached at the case management hearing, these new defences would have been

disregarded on the ground that they were contrary to the proper conduct of proceedings

and the principle of the right to be heard. The court is aware that, following the case

management hearing of 3 June 2025, the Truck Manufacturers were still permitted to raise

defences against the 727 new transactions. The parties were at that point instructed, as set

out above at 1.4, to submit a summary document containing “a full account of what was still

relevant for the oral hearing on 18–19 November 2025 and for the decisions to be taken by

the court”. In their summary pleading, the Truck Manufacturers did not devote a single

word to the topic of volume of commerce. Instead, they only included the defence against

the 727 truck transactions in Exhibit TRUC-0071, which was submitted on 29 October

2025, shortly before the oral hearing. As a result, CDC has not had a proper opportunity to

comment on those defences during the proceedings, which is not in accordance with the

proper conduct of proceedings and the principle of the right to be heard.

7.25. In view of the foregoing, the 727 truck transactions in question are deemed to be

uncontested.

The substance of the defences

7.26. Both parties have submitted overviews in which they have given reasons, at the level

of individual truck transactions, with or without reference to documents, for why the

transaction in question does or does not fall within the scope of the Infringement. They

have also set out in their court documents their positions on certain topics, grouped into

categories. The court will give its ruling on those categories below. First, it considers in

general terms that the argument of the Truck Manufacturers that CDC has been unable to

prove a particular transaction does not hold water. The debate is, after all, being conducted

within the legal framework of assertion and denial. There is no question (at this stage) of a

burden of proof on CDC.

The documents to be submitted

7.27. In their submission of 13 November 2024, the Truck Manufacturers again requested

the court to first rule on what documents constitute sufficient evidence of a transaction. In

response to earlier similar requests, the court had already held in the first and second

judgments on the burden of assertion that it is for the Claimants themselves to determine

what information they consider necessary to substantiate their claims. In the second

judgment on the burden of assertion, the court also stated, at paragraph 3.9, that it

appeared appropriate for CDC, in order to satisfy the burden of assertion, to provide

certain information set out in that paragraph (including the correct/complete VIN or

chassis number). However, the court also considered that, given the passage of time, it was

understandable that not all transaction documents are still available. The court therefore

expressly did not require CDC to substantiate its claims in any particular manner, and it

will not do so in the present judgment either.

7.28. In their defence, the Truck Manufacturers have demanded that CDC provide one or

more transaction documents for every truck transaction. By “transaction documents” they

mean documents evidencing the purchase, hire or lease of a truck, such as invoices, lease

agreements and order confirmations. The Truck Manufacturers contest transactions for

which such a document is missing and which are supported, for example, by registration

certificates and other documents. CDC argues that a transaction document is not available

for every truck. CDC submits (uncontested) that it has provided at least one document for

every transaction containing the VIN and the purchaser. It states that it has also submitted

other types of reliable documents in the proceedings to support its claims. For example,

CDC has submitted official registration certificates for 2,809 trucks. According to CDC,

those registration certificates from official authorities show, among other things, the name

of the truck owner (the Assignor), the VIN, the type of truck, the weight class, the date of

first registration, the date of the current registration and the country of registration. For

certain Assignors, CDC has submitted a dataset from the systems of (large) companies by

way of evidence, combined with a statement from the Assignor regarding the sources,

composition and reliability of the data contained therein. According to CDC, those internal

data are exceptionally reliable and accurate, as they were used for various essential

business processes, such as accounting, fleet management and insurance, and had to be

error-free for those processes. With regard to 2,880 truck transactions, CDC has submitted

other documentation. Those documents, CDC states, always contain the name of the

Assignor and the VIN, thereby establishing the link between that party and the truck. The

majority of those documents originate from official sources, such as lists from the road

authority, the Ministry of the Interior and notaries, or from third parties, such as insurers.

7.29. As already considered, CDC was free to substantiate its assertions by means of the

documents available to it, having regard to the passage of time, which it considers provide

sufficient evidence that a truck transaction falls within the scope of the Infringement. It is

then for the Truck Manufacturers, where appropriate, to explain, with reasons, why the

relevant evidence does not establish that the alleged transaction falls within the scope of

the Infringement. A defence that (merely) asserts that certain documents are missing,

without specifically indicating why the documents submitted do not sufficiently

substantiate the existence of a transaction, is insufficient for that purpose. In so far as the

Truck Manufacturers’ defence regarding specific transactions, substantiated by CDC with

documents, consists merely of the assertion that a transaction document is missing, the

Truck Manufacturers have therefore failed to sufficiently contest those transactions. The

same applies where the Truck Manufacturers have simply stated in their defence that a

transaction is contested because no VIN is included in a transaction document that has

been submitted. Where the VIN is not included in a transaction document but is, for

example, included in another document, that constitutes evidence which must be refuted

with proper reasons.

Transaction cannot be verified on the basis of sales data

7.30. Under step (d) of their multi-stage defence, the Truck Manufacturers attempted to

verify, using the VIN, whether the transactions remaining after step (c) and those not

excluded at step (b) during the Extended Administrative Check fell within the scope of the

Infringement, by cross-checking them against their own sales records.

7.31. In the submission of 13 November 2024, the Truck Manufacturers stated that in

17,863 cases it proved impossible to verify the existence of the transaction. They cite as

possible reasons that the transaction did not take place, or that the Truck Manufacturers’

sales data are incomplete. For example, DAF has only very limited data from the period

prior to 2004, when DAF began using a new order management system. Furthermore, DAF

and Volvo/Renault sell the vast majority of their trucks to independent dealers, meaning

that the end user’s name is by no means always recorded. The same applies to Daimler,

which also sells a large proportion of its trucks to independent dealers, so that the end

user’s name is not always known. For Scania, too, the database is not comprehensive, as

Scania does not have a central sales database and the central databases that form the

source for Scania’s dataset vary by country and by variable in terms of availability, quality

and scope. MAN used various decentralised records by country or region, some of which

are more complete than others, for example because trucks were sold through independent

dealers in some countries. Furthermore, the records have been updated over time with

new software systems, enabling better registration. Not all trucks sold can be found in

MAN’s systems.

7.32. Contrary to what the Truck Manufacturers appear to assume, the relevant question

here is not whether the manufacturers have been able to verify a transaction in their own

sales systems. What matters is whether the evidence provided by CDC has been sufficiently

substantiated. If the Truck Manufacturers can verify a transaction on the basis of their own

records, it is clear that that transaction need not be contested. Conversely, if the Truck

Manufacturers cannot verify a transaction, that does not of itself mean that the transaction

has been substantively disputed. As the Truck Manufacturers themselves also point out,

there may be other reasons why they cannot verify the transaction, such as an incomplete

dataset. If the documentation submitted by CDC shows that a particular truck of a

particular make was registered in the name of a particular Assignor during a specific

period, that constitutes substantiated evidence. Whether that evidence is legally sufficient

depends on whether the challenge to it is likewise substantiated. In the face of

substantiated evidence of a transaction, the Truck Manufacturers cannot, in their defence,

simply argue that the transaction cannot be verified in their internal databases.

7.33. In the majority of cases where the Truck Manufacturers have argued that they were

unable to verify the transaction in their records, the issue is that the Truck Manufacturers

cannot locate the name of the Assignor in their systems. According to CDC, in virtually all

such cases, the situation is that an Assignor has purchased a truck through a dealer (who in

turn purchased the truck in question directly from one of the Truck Manufacturers). The

transaction is therefore not registered in the Truck Manufacturers’ systems in the name of

the Assignor. That does not, however, necessarily mean that the alleged transaction does

not fall within the scope of the Infringement. It is incumbent upon CDC, in such cases, to

substantiate with documents from which dealer the Assignor purchased which truck and

when. In other words, further substantiation is required that goes beyond mere ownership

or possession at a specific point in time, as evidenced by documents such as registration

certificates. To that extent, as the Truck Manufacturers also argue, a registration certificate

alone is insufficient. However, in those cases where CDC has substantiated a transaction in

the sense referred to here, the Truck Manufacturers cannot simply rely on a challenge

amounting to the fact that the name of the Assignor does not appear in their sales

databases. In those cases, the court will consider the transaction in question to be

insufficiently contested and will treat it as established.

7.34. It is also important to note that a well-founded claim must be met with a well-founded

defence. CDC has pointed out on several occasions that in their defence under point (d) the

Truck Manufacturers refer to data from their sales database without submitting that data.

In response, the Truck Manufacturers have argued that they have provided detailed

substantiation of the steps they have taken, and that they are not obliged to submit data

from the databases. The court agrees with CDC that, where CDC’s claim is substantiated by

documents, a proper defence by the Truck Manufacturers requires them to make their

defence transparent and verifiable. Merely listing the steps they have taken is insufficient.

In so far as the Truck Manufacturers confine their challenges to references to data from

their databases, without submitting the relevant data or making them verifiable in any

other way, the associated truck transactions are deemed to have been insufficiently

contested. That applies expressly also to those transactions in respect of which the Truck

Manufacturers argue that their internal (unsubmitted) data indicate that the vehicle is a

second-hand truck or that the sale took place outside the EEA.

Scope of the Infringement

7.35. Some of the transactions have been contested by the Truck Manufacturers on the

ground that they fall outside the scope of the Infringement. In those cases, the transactions

as such have not been contested.

Transactions outside the EEA

7.36. As the court held at paragraph 3.9 of the second judgment on the burden of assertion,

claims in respect of trucks which were purchased, hired, leased or used in countries

outside the EEA are dismissed. The transactions alleged by CDC involving Swiss Assignors

that took place between parties in Switzerland will accordingly be dismissed.

Second-hand trucks

7.37. The Truck Manufacturers have instructed FTI’s reviewers to classify a truck as

second-hand if the transaction document (unambiguously) states that it is a “second sale”

or uses similar wording, or if the transaction document indicates that the truck has

travelled more than 5,000 kilometres. In such cases, according to the Truck Manufacturers,

there is an indication that the truck is second-hand. Daimler has, in derogation from this,

also classified as second-hand trucks that had more than 0 and less than 5,000 kilometres

on the odometer. In the submission of 13 November 2024, following further analysis, a

large proportion of the trucks classified as second-hand in the statement of defence were

subsequently reclassified as new.

7.38. According to CDC, it has become apparent that the Truck Manufacturers’

classifications are correct only in isolated cases. CDC states that this is underscored by the

large number of transactions where the Truck Manufacturers subsequently determined,

following the submission of their written defence, that the vehicles in question were in fact

new trucks. As one of the reasons for the large number of trucks incorrectly classified as

second-hand, CDC points out that the Truck Manufacturers base their classification on a

comparison of the order date in their databases — rather than the delivery date, which is

sometimes much later — with the transaction date specified by CDC. In situations where

trucks are pre-ordered as part of a large order and are only delivered over time, that

method leads to trucks being incorrectly classified as second-hand.

7.39. The court rules as follows. In those cases where CDC, in response to a truck described

as second-hand by the Truck Manufacturers in their statement of defence, has specifically

stated that the truck is new and provided evidence to that effect, the Truck Manufacturers

could not, in their pleading of 13 November 2024, simply refer to a general indication that

the truck is second-hand. Where CDC has substantiated its claim as referred to here, a

transaction is only deemed to be sufficiently contested if the Truck Manufacturers have

stated in their defence, with reasons, that and why the information submitted by CDC does

not show that the truck is new. This means that in cases where the Truck Manufacturers, in

response to CDC’s substantiation, have merely referred to the existence of one or more

general indications, the transactions in question are deemed to be insufficiently contested.

FUSO trucks

7.40. Six of the trucks are Fuso models. According to CDC, that brand has been part of

Daimler AG since 2006 and the transactions fall within the scope of the Infringement. The

Truck Manufacturers dispute this. They argue that pricing for Fuso trucks was set

independently by the head office of Mitsubishi Fuso Truck and Bus Corporation, an

independent Japanese entity which is not mentioned in the Decision. Furthermore, there

are no centrally set European list prices for Fuso trucks.

7.41. In response to that defence, CDC referred to Fuso’s website, which shows that Daimler

Trucks AG holds 89.29% of the shares in Mitsubishi Fuso Truck and Bus Corporation. That

entity was, and remains, under the full control of Daimler, the company fined for the cartel.

Furthermore, according to CDC, it is not contested that the trucks were sold within the EEA.

The Truck Manufacturers did not subsequently respond to this (in their court documents).

It is noteworthy that Daimler included the following in the truck table submitted in

evidence with the submission of 13 November 2024: “Now Inside Scope step (b), as Fuso

belongs to Daimler”.

In view of the foregoing, the court finds that it is no longer disputed that the six Fuso trucks

fall within the scope of the Infringement.

Special purpose vehicles

7.42. Daimler disputes that Vario, Unimog and Econic vehicles qualify as trucks within the

meaning of the Decision. In its view, Vario vehicles are not trucks but vans. Unimog vehicles

are used off-road for military purposes and for municipal tasks. They are unique vehicles

featuring unique technology, and there is no competing product on the market for this type

of vehicle. The Econic is a so-called low-floor vehicle, which is primarily suited for

municipal use (for example, as a refuse collection vehicle) or for special bodywork, for

instance for airport vehicles. According to Daimler, there are significant technical

differences between the Econic and standard trucks, and for almost the entire duration of

the Infringement the other Addressees of the Decision were unable to offer an adequately

competitive product.

7.43. The court refers to the judgment referred to at paragraph 7.44 above, in which the

CJEU also held:

"Furthermore, that decision contains no element whatsoever on the basis of

which it may be concluded that special trucks do not form part of the products to

which the infringement at issue in the main proceedings relates.

In view of the foregoing, the answer to the question referred is that the decision in

question must be interpreted as meaning that specialised trucks, including refuse

collection trucks, are among the products to which the cartel established in that

decision related."

7.44. In the absence of any indication that special-purpose trucks are not covered by the

Infringement, Daimler’s defence fails. The Vario, Unimog and Econic vehicles fall within the

scope of the Infringement.

Transactions after the infringement period

7.45. At the case management hearing of 3 June 2025, the court ruled as follows with

regard to transactions that took place after the infringement period:

“The approximately 23,000 truck transactions that may fall within the run-off

period may be excluded from this overview, as the court will first decide whether

there is a run-off period and, if so, how long that period lasts.”

The court has now established in this judgment that there was a run-off period, which

ended on 30 May 2013; see 6.54 above. The transactions that took place during the run-off

period will be examined in more detail once the parties have had the opportunity to

exchange their views on the matter.

Transaction date in relation to the Infringement

7.46. The parties agree that the Decision provides no basis for claiming damages in respect

of transactions that took place prior to the period of the Infringement as established by the

Commission. The court understands that CDC included the transactions in question in its

reports solely as comparator data for the purposes of before-during-after regression

analyses.

Conclusion

7.47. In the preceding paragraphs, the court has ruled on various points in dispute. The

court assumes that, on this basis, the parties will themselves be able to determine, for all or

virtually all the truck transactions in question, which of them can still be added to the list of

accepted trucks. If any transactions remain on which the parties cannot agree, they may

bring this to the court’s attention. The court will then rule on the matter.

8. Value of commerce

8.1. In order to estimate the damage, the value of commerce must be determined in

addition to the volume of commerce. The value of commerce relates to the prices and lease

instalments actually paid by the Assignors. The parties disagree on the principles for

determining the value of commerce. Where the parties do agree is that it must relate to the

base price of the truck, i.e. excluding, for example, the costs of equipment sold or fitted by

third parties, of trailers and of delivery. The parties do not, however, agree on what the

actual base sale price is, as they apply different starting points.

8.2. In view of the debate on the assessment of damages, CDC submitted data on prices and

payment flows (payment schedules for leasing and other instalment payments) in its

submission of 7 August 2024. In that submission, CDC provided a brief explanation of the

data submitted. CDC subsequently supplemented those data.

At the case management hearing of 3 June 2025, the Truck Manufacturers gave an initial

(brief) response to the position taken by CDC and to the data submitted by CDC. CDC also

addressed the matter briefly.

The court subsequently ruled that the value of commerce (as part of the debate on the

methodology for determining the volume of commerce) would be discussed at the oral

hearing of 18–19 November 2025.

CDC and the Truck Manufacturers set out their positions in their summary statements of 1

October 2025. Finally, the parties responded to each other’s positions in their further

submissions and at the oral hearing of 18 and 19 November 2025.

CDC’s position

8.3. CDC submits that, as a result of the Infringement, the Assignors have suffered direct

loss in the form of the additional cost they paid for the new trucks they purchased. The final

prices and lease instalments paid by the Assignors are the data on the basis of which the

damages must be calculated. It is those prices and lease instalments which must be

compared with the hypothetical “but-for” price as determined by the regression analysis.

CDC explains this as follows.

8.3.1. CDC’s approach is the only correct one, both legally and conceptually. Article 6:193k,

preamble and under g, of the Dutch Civil Code provides that “additional costs” is to be

understood as meaning the difference between the price actually paid and the price that

would have been charged had there been no infringement of competition law. The damages

claimed are the full additional cost ultimately paid by the Assignors in their purchase and

lease transactions on the market for new trucks as a result of the Infringement. According

to CDC, this is also in line with the decisions of courts in other EU Member States, which

award damages on the basis of (at least 5% of) the transaction price (invoice amount) paid

by the end customer. In Tibor-Trans, the CJEU accordingly held that the additional cost paid

by the purchaser as a result of the Infringement for new trucks purchased through a dealer

constitutes direct damage resulting from the Infringement.⁷¹

8.3.2. As already mentioned above (at 8.2), CDC has submitted data relating to the prices

paid and lease instalments. In so doing, CDC has based its calculations on a pricing concept

consistent with the Decision and the Scania Decision: the price of the truck including

factory-fitted options, but excluding after-sales services. More specifically, CDC states that

it has based its pricing structure on the final (net) price of the truck (after all discounts),

excluding VAT, excluding the cost of equipment fitted by third parties, excluding the price

of (semi-)trailers, excluding delivery costs (if invoiced/specified), excluding service and

maintenance costs, and including all factory-fitted options.

8.3.3. With regard to the source of the price data, they are derived from the truck

(transaction) documentation submitted on 6 August 2024. Where CDC does not have data

on exact prices, the prices have been estimated using an algorithm that draws on prices

from other truck transactions for which CDC does have exact prices.

8.3.4. For leasing and other payment plans, CDC has based its calculations solely on long-

term leases of trucks, where the monthly lease payments are based on the price of the

truck, the duration of the lease and the interest rate applied by the lessor. CDC has taken

into account only the lease payments for the truck itself. In cases where the available data

on payment schedules are non-existent or unreliable, i.e. do not correspond to the price

definition (for example because other components are included in the payments), CDC has

estimated the payment schedule.

⁷¹CJEU 29 July 2019, C-451/18, ECLI:EU:C:2019:635 (Tibor Trans v DAF Trucks).

Position of the Truck Manufacturers

8.4. The Truck Manufacturers submit that CDC’s purchase and lease prices cannot be used

to calculate the damages, as they include elements that fall outside the scope of the

Infringement. According to the Truck Manufacturers, CDC’s estimated purchase prices

systematically and substantially overestimate the prices of the bare trucks which, on CDC’s

case, would have been affected by the Infringement. That is for the following reasons.

8.4.1. CDC is unable, on the basis of the documents provided by the Assignors, to effectively

isolate the actual (base) selling price of the trucks from the prices of additional goods and

services sold together with the truck and not affected by the Infringement. Analyses and

spot checks show that CDC is claiming damages for all sorts of items that were not sold by

the Truck Manufacturers and (therefore) not affected by the Infringement. Those items are

not included in the internal cost data of the various Truck Manufacturers. This includes, for

example, additional truck parts and additional services provided by the dealer.

8.4.2. CDC does not take into account the profit margin that dealers may apply when selling

trucks. The dealer margin is a cost item which is set and charged by the dealer to the

Assignors, not by the Truck Manufacturers. The dealer margin is therefore not part of the

base selling price at which the Truck Manufacturers sold the trucks. According to the

Decision, only the base selling price may have been affected by the Infringement. The

dealer margin is not included in that.

8.4.3. The parties involved appear to have made data entry errors when providing their

price information. CDC appears not to have been able to filter out and correct those errors.

In their summary statement, the Truck Manufacturers cite a number of examples where the

purchase price stated is higher than the purchase price shown on the corresponding

invoice.

8.4.4. CDC has had to estimate the purchase price in cases where the Assignors no longer

have documents from which the cost of a truck can be inferred. According to the Truck

Manufacturers, the algorithm used by CDC for that purpose is unsuitable. Here too, CDC has

systematically overestimated the purchase price. Furthermore, according to the Truck

Manufacturers, in a number of cases where the price was estimated, the transaction

documents submitted show that the purchase price was lower. In those cases, therefore,

there was no need to estimate the price at all.

8.4.5. The Truck Manufacturers, on the other hand, are perfectly capable of supplying the

base sales prices. They submit that the sales prices recorded in the Truck Manufacturers’

datasets should be taken as the starting point for determining the value of commerce.

Those data are also more reliable, because, in principle, they do not contain any items,

parts or services unrelated to the Infringement. This is in line with the Decision, which

states that the Infringement could in fact relate only to the sale of trucks.

8.5. According to the Truck Manufacturers, CDC has also substantially overestimated the

value of commerce of leased trucks. There are two main reasons for this.

8.5.1. In the first place, the purchase prices of trucks are structurally overestimated. That

applies also to the purchase prices of leased trucks. To the extent that the lease payments

are derived from the purchase prices used by CDC, that overestimation therefore feeds

through into the value of commerce. A correction will need to be applied to the portion of

the lease payments that is not attributable to the base price of the truck.

8.5.2. Secondly, the lease amount used by CDC may be unduly inflated if it includes

additional products and services unrelated to the Infringement, such as bodywork or repair

and maintenance contracts. A sample analysis of Iveco trucks, for example, shows that CDC

did indeed do so. The lease payments may include additional products and services, even if

the purchase prices used by CDC do not. That calls for an adjustment by revising the total

payments for leased trucks on the basis of the difference between the prices set by CDC and

the prices in the systems of each of the Truck Manufacturers.

Assessment

8.6. As considered above, the parties agree that the value of commerce is to be determined

on the basis of the prices and lease instalments actually paid by the Assignors. Nor is it

disputed that this must relate to the base price of the truck, i.e. excluding, for example, the

costs of equipment sold or fitted by third parties, of trailers and of delivery. The parties

differ (on certain points) as to how that base sale price should be determined.

8.7. CDC takes as its starting point the final prices and lease instalments paid by the

Assignors. The Truck Manufacturers argue that that does not and cannot lead to correct net

sales prices. Since it is in principle for CDC to assert and substantiate the existence and

extent of the damage (potentially) suffered by the Assignors as a result of the Infringement

(see under 6.20), and since CDC has indeed calculated (and, where necessary, estimated)

the value of commerce (the net selling prices), the court will take CDC’s method of

calculating (and estimating) the value of commerce as its starting point in its assessment.

The Truck Manufacturers’ points of criticism are addressed in turn below.

Truck Manufacturers are simply able to provide the list prices

8.7.1. The court begins with the Truck Manufacturers’ assertion that they can simply

extract the base sales prices from their systems. As was also argued at the hearing,

this is implausible. As considered above (at 6.26) with regard to the regression

analyses carried out by the Truck Manufacturers’ economists, the datasets used for

those regression analyses are far from complete: data from the early period of the

Cartel are often missing, and data for a number of years during the infringement

period are sometimes also missing. That it might now suddenly be possible for the

Truck Manufacturers, as stated in the summary pleading and confirmed by Mr Van

Dam at the hearing, with the aid of the VIN numbers, to extract from their systems

the sales prices for all truck transactions throughout the entire infringement period,

is inconsistent with this. On closer reading, the summary pleading in fact states

“where available”, by which the Truck Manufacturers themselves apparently already

acknowledge that their data will not be complete either. The court therefore

assumes that neither the Truck Manufacturers nor CDC (as it has itself already made

clear) is able to provide the actual sales price for all relevant truck transactions. For

some of the truck transactions, the price will therefore have to be estimated,

regardless of which data are used.

8.7.2 CDC has (uncontested) stated that approximately 76% of the prices it uses to

calculate the value of commerce are exact, whilst the remaining 24% are estimates.

The great majority of the prices therefore originate from the records of the

Assignors. The court will now address that point first.

Effectively isolating the (base) selling price of trucks

8.7.3 CDC has explained how it arrived at the base sales prices. CDC has provided the

Assignors with a guide for entering price information and payment plans (for

leasing and other instalment payments), the “Manual Price and Payment Plans”,

which it has submitted as an exhibit in the proceedings. In that manual, CDC has

defined and applied the pricing structure in line with the Decision, namely the final

(net) price of the truck (after all discounts), excluding VAT, excluding the cost of

equipment fitted by third parties, excluding the price of the (semi-)trailer, excluding

delivery costs (if invoiced/specified), excluding service and maintenance costs, and

including all factory-fitted options. The Truck Manufacturers do not dispute that

that is the correct definition.

8.7.4 The Truck Manufacturers submit that CDC is unable, on the basis of the

documents provided by the Assignors, to isolate the actual (base) selling price of

trucks from the prices of additional goods and services, and refer in this respect

(solely) to analyses carried out by Compass Lexecon on behalf of CNH/Iveco. That,

they claim, shows that CDC is claiming damages “for all manner of components that

were not sold by the truck manufacturers, and (therefore) were not affected by the

infringement”. However, those Compass Lexecon analyses show — and that was, as

Mr Van Dam stated at the hearing, also the instruction — that they investigated

whether the truck sales prices used by CDC correspond to the sales prices of the

same trucks in the data provided by CNH/Iveco. The Truck Manufacturers then

argue that, on the basis of Compass Lexecon’s comparison between the data

submitted by CDC and the Iveco data, “it is therefore plausible that CDC frequently

claims damages for components that were not charged by the Truck Manufacturers

in both direct and indirect sales”. The Truck Manufacturers have, however,

apparently not submitted the data on which those analyses are based, nor have they

provided any examples to illustrate precisely where the error lies. Without that

information, such analyses naturally have rather little value, and there is, at the very

least, as CDC has rightly pointed out, a risk of comparing apples with oranges. In any

event, the Truck Manufacturers have failed to sufficiently substantiate their claim

that CDC is unable, on the basis of the documents provided by the Assignors, to

isolate the actual (base) selling price of trucks, and the court therefore disregards

this argument.

Data entry errors in price data

8.7.5. The Truck Manufacturers state that they have themselves checked part of the

evidence provided by the Assignors by means of a “manual (random) sample”.

According to the Truck Manufacturers, this “analysis” confirms that, in several cases,

CDC assumes a higher price for a (bare) truck than is apparent from the documents

submitted.

8.7.6 CDC counters that this concerns only a few cases: at the case management

hearing of 3 June 2025, the Truck Manufacturers were able to cite three

transactions, and the summary pleading lists eight (new) transactions. Those

therefore represent only a few of the nearly 60,000 transactions for which CDC is

claiming compensation. Furthermore, CDC has consistently stated that it is prepared

to rectify errors.

8.7.7. With respect to CDC, the court is of the opinion that (i) the (few) errors made

during implementation must be corrected, but that (ii) the fact that things can go

wrong during implementation (and sometimes have gone wrong) does not mean

that the price actually paid by the purchasers of trucks (the Assignors) is not a

suitable starting point for calculating the value of commerce.

8.7.8 It is unclear on what basis the Truck Manufacturers believe they can reserve

the right, at a later date and on a manufacturer-by-manufacturer basis, to challenge

the price set by CDC and supported by documentary evidence for all truck

transactions. The Truck Manufacturers do not (any longer) have that right in these

proceedings. Nevertheless, CDC will have to rectify any errors that have been or are

identified. It has, however, already declared itself willing to do so at all times.

Dealers’ profit margin

8.7.9. It is clear that when (and this is often the case) a truck is sold through a dealer,

the dealer will charge a margin (the dealer’s margin). The parties agree on that

point. The question, however, is whether the margin charged by the dealer may

form part of the price (used to calculate the value of commerce). According to CDC,

the dealer margin is included in that price. The dealer margin is, after all, simply

part of the price paid by the Assignor. It is, moreover, not possible for CDC (or the

Assignors) to ascertain how the dealer margin is construed. According to the Truck

Manufacturers, the dealer margin should not form part of the price (used to

calculate the value of commerce). The dealer margin is not included in the base

selling price and is not charged by the Truck Manufacturers to the Assignors, but by

the dealer. According to the Truck Manufacturers, under the Decision only the base

selling price is (potentially) affected by the Infringement.

8.7.10. At the hearing, the Truck Manufacturers explained for the first time that the

dealer margin is not always calculated as a percentage of the selling price, but that

this can be (and is) done in two different ways: (i) the dealer margin calculated as a

percentage of the truck’s selling price, and (ii) the dealer margin as a fixed amount.

8.7.11. Inasmuch as the dealer margin is calculated as a percentage of the truck’s

selling price, the court can readily accept CDC’s argument. If, after all, that selling

price is too high as a result of the Infringement, a percentage calculated on that

selling price will also be higher. It only became clear to the court at the hearing that

the Truck Manufacturers take the view that the dealer margin can apparently also

be a fixed amount. That was also new to CDC, and in the court’s view CDC was

therefore unable to respond adequately to it. Since the Truck Manufacturers did not

mention this distinction between the different types of dealer margins at all in the

written submissions (statement of defence and further written submissions

statement), let alone substantiate it, that defence is therefore belated and thus

contrary to the proper conduct of proceedings. It has, after all, not been argued or

shown that that distinction could not have been raised earlier in the written

pleadings. This means that that defence is disregarded.

8.8. All of this leads to the conclusion that any dealer margin forms part of the price (used

to calculate the value of commerce).

Algorithm for estimating prices unsuitable

8.8.1. As already considered, the price will have to be estimated if insufficient data

are available to determine the actual price (Article 6:97 of the Dutch Civil Code).

CDC has used an algorithm to estimate those (missing) prices. In its summary

pleading (and previously in its submission of 7 August 2024), CDC explained in

detail how this — in its view, highly sophisticated — algorithm works.

8.8.2 The Truck Manufacturers argue (merely) that the method used by CDC is

“unreliable”, “partly because truck prices are in fact highly dependent on specific

circumstances, such as the truck’s specifications, the market, the buyer and the

negotiations prior to purchase”. They go on to argue, with reference to a comparison

by Compass Lexecon (instructed by MAN) of the prices estimated by CDC (by means

of the algorithm) with, according to the Truck Manufacturers, the actual sales prices

of those same MAN trucks, that CDC “systematically misestimates” the purchase

price of the trucks. A study by Daimler and CNH/Iveco allegedly confirms that

pattern. This, according to the Truck Manufacturers, confirms that the algorithm

used by CDC is unable to estimate the sales prices of the trucks accurately.

8.8.3 In response, CDC pointed out that (i) it is unclear which prices MAN is

comparing, (ii) the data used for the comparison have not been submitted, and (iii)

no similar objections have been raised regarding other brands.

8.8.4. It is considered that CDC has explained in detail how its algorithm works and

that the Truck Manufacturers have not engaged with its functioning at all. They have

not identified, let alone substantiated, which parts of the algorithm are flawed (and

why). They have accordingly failed to provide sufficient grounds for disputing that

the algorithm is suitable for estimating the (missing) prices as accurately as

possible. The mere comparison with their own prices (which are not verifiable by

CDC or the court) is insufficient for that purpose. This means that, where necessary,

the (estimated) prices calculated by CDC using that algorithm may be relied upon

for the value of commerce.

Value of commerce for leased trucks

8.8.5. CDC has calculated the value of commerce for leased trucks by adding up the

total lease payments for each truck; according to CDC, those payments consist solely

of the price of the truck and the financing costs, and only the portion of the truck’s

price actually paid and the corresponding interest paid by the lessee are taken into

account. The Truck Manufacturers confirm that that may be a suitable method for

calculating the value of commerce for leased trucks. The Truck Manufacturers argue,

however, that the value of commerce for leased trucks as calculated by CDC cannot

be relied upon because (i) the purchase prices of the trucks have been

systematically overestimated and (ii) additional products and services unrelated to

the Infringement have been included, such as bodywork or repair and maintenance

contracts.

8.8.6. The Truck Manufacturers have also advanced the first argument in relation to

purchased trucks. Specifically in relation to the leased trucks, the Truck

Manufacturers have referred to a sample analysis carried out by Compass Lexecon

on behalf of CNH/Iveco of 56 Iveco trucks, which is said to show that CDC included

lease payments containing additional elements not charged by Iveco (the Truck

Manufacturers cite a “body”, a “unit fitted on top of the truck” and “specialised

equipment behind the cab”). Compass Lexecon is also said to have found evidence

on behalf of MAN that the overestimation is “significant”. The Truck Manufacturers

ask the court to allow them the opportunity to carry out an (updated) calculation for

each Truck Manufacturer and to propose a reduction percentage for the lease

payments reported by CDC.

8.8.7 In support of the second argument — that the lease amount used by CDC is

unjustifiably inflated because it includes additional products and services, such as

bodywork or repair and maintenance contracts — the Truck Manufacturers refer

(merely) to a sample analysis, which allegedly shows that various other factors, such

as additional services, VAT and calculation errors, lead to an overestimation of the

value of commerce, because those components do not usually form part of the truck

price stated in the contract or taken over by CDC. As they did at the case

management hearing of 3 June 2025, the Truck Manufacturers cite (only) the lease

contracts submitted by CDC for the Iveco truck with VIN WJMM1VSH404365919,

which allegedly show that the costs for “technical maintenance and technical

repairs” form part of the lease price, and further state that other Truck

Manufacturers “observe a similar pattern of a structural overestimation of the value

of commerce” of leased trucks. Compass Lexecon is said to have found evidence on

behalf of MAN that the lease payments used by CDC are “unrealistically high in

certain cases”. Compass Lexecon “observes” that the sum of the lease payments

reported by CDC for 42% of the MAN trucks exceeds the actual (base) truck price in

MAN’s records, in some cases by as much as 50%. That is said to be (partly)

attributable to the predominantly short-term leases in the CDC dataset. Finally, the

Truck Manufacturers propose a “pragmatic solution for the lease payments”, namely

the previously mentioned “reduction to CDC’s value of commerce for leased trucks

based on the difference between CDC’s prices and the prices in the truck

manufacturers’ systems”.

8.8.8. The court holds as follows. The arguments put forward by the Truck

Manufacturers have not sufficiently challenged the “value of commerce” for leased

trucks as calculated by CDC. There is no reason to order a re-examination as

proposed by the Truck Manufacturers. At the case management hearing of 3 June

2025, it was agreed with the parties that the value of commerce would (also) form

part of the damages debate (see 2.1–2.2), which would take place in full at the

hearing of 18–19 November 2025. It is moreover relevant for the present judgment

that CDC had already introduced into the proceedings on 13 November 2024 both

the manual it had provided to the Assignors for recording (also) the payment plans

for leasing and other instalment payments (the aforementioned Manual Price and

Payment Plans), together with the price data used to determine the value of

commerce. CDC submits that only long-term leased trucks are included (according

to CDC, this is clear from the data it submitted as early as 7 August 2024: of the

more than 37,000 lease transactions in the CDC dataset, only 244 involve a period of

less than one year between the first and last payment). CDC has explained that it

developed a system that enables the payment flow to be compiled without users

having to enter each payment individually. A “payment schedule module” was used.

According to CDC, the detailed approach used ensured that the quantification only

takes into account the amounts actually paid by the Assignors and not assumptions

based on the total price of a truck. CDC also explained which algorithm it used to

estimate payment schedules and reiterated the key steps and concepts in its

summary pleading. It explained that the suitability of the criteria used and the order

of preference of the reference populations were determined empirically and are

based on patterns that CDC observed in the data. CDC estimated the payment flow

for approximately 18% of the trucks using that algorithm.

8.8.9. The Truck Manufacturers do not submit that there is anything wrong with the

method used by CDC. They simply say nothing at all about it. Furthermore, although

they have had access to all the data since 7 August 2024, they have identified

(virtually) no errors. CDC has also confirmed here that, should the Truck

Manufacturers find any errors in CDC’s dataset, it will correct them.

Conclusion

8.8.10. All of this leads to the conclusion that the value of commerce for the leased trucks,

as calculated by CDC, can be taken as the basis for calculating the damages.

9. Emissions damage

9.1. CDC submits that the Claimants have (also) suffered loss as a result of the agreements

reached by the Truck Manufacturers regarding the timing of the introduction of the EURO

III to EURO VI standards. As a result of those agreements, the Claimants were unable to

benefit from the economic advantages offered by the most advanced and cost-effective

emission technologies until the Truck Manufacturers permitted them to do so. During the

Cartel Period, the Truck Manufacturers delayed and blocked the introduction of various

technological innovations. That probably led to higher costs for the ownership and

operation of trucks, including, for example, costs of insurance, fuel, financing, road tax and

tolls. In particular, road tax and tolls in some countries depend on the vehicle’s emission

class or fuel efficiency. Furthermore, during the Cartel period, the Truck Manufacturers

discussed passing on the costs of implementing the increasingly stringent emission

standards to their (end) customers. This, according to CDC, led to higher truck prices. CDC

provisionally estimates the damage resulting from the delayed availability of truck models

equipped with new emission technologies at €6,705,450.00⁷²(excluding interest).

9.2. The Truck Manufacturers defend themselves against CDC’s claims, inter alia, on the

ground that the Commission did not establish in the Decision that the parts of the Decision

relating to the infringement concerning the EURO standards had any effect on the timing of

the introduction of new emission technologies or on the passing on of the costs thereof.

Furthermore, CDC’s arguments are based on a number of incorrect assumptions:

(i) that, without the Infringement, trucks equipped with emission-control technology

complying with the latest EURO standard would have come onto the market earlier

than the statutory deadline for the introduction of that standard;

(ii) that the Claimants would have purchased trucks with new emission technology en

masse as soon as they became available, even if that was before the legal deadline from

which the new emission technology became mandatory for new trucks, and cheaper

trucks with the older emission technology were therefore still being produced and

sold;

(iii) that new emission technology always results in fuel savings and a reduction in other

operating costs;

(iv) that, without the Infringement, the Truck Manufacturers would not have been able to

pass on the cost increases.

The Truck Manufacturers also point out that it has not been specified which emission

standard the specific trucks in respect of which CDC is claiming damages comply with.

⁷²Exhibit CDCR-0081, CDC I Claim Calculation, October 2024.

9.3. The Truck Manufacturers further argue that, contrary to CDC’s claim, they did not delay

the introduction of new EURO-standard-compliant trucks until there was a legal obligation

to do so. In support of this, they have drawn up the following overview:

According to the Truck Manufacturers, this overview shows that the date of introduction

varies by Truck Manufacturer and by emission standard. Furthermore, all the Truck

Manufacturers introduced the required emission technology well ahead of the legal

deadlines.

9.4. In response to the defence, CDC submitted a report by CDC Consulting⁷³in support of

its arguments, accompanied by digital files on toll charges in France⁷⁴and on fuel

consumption and mileage.⁷⁵CDC also relies on the so-called Ryder court document.⁷⁶

Information from the Ryder court document was used extensively in the CDC Consulting

report. According to CDC, the CDC Consulting report and the Ryder court document show

that the Infringement did indeed lead to a delay in the availability of new truck models. CDC

⁷³Exhibit CDCR-0052, Harm caused by collusive delay, 22 October 2020.

⁷⁴Exhibit CDCR-0053 (USB stick).

⁷⁵Exhibit CDCR-0054 (USB stick).

⁷⁶Exhibit CDCR-0049, Amended Particulars of Claim in the case of Ryder Ltd and Hill Ltd v

MAN SE and others before the CAT; see also the interlocutory judgment of 12 May 2021,

paras 3.7.1 and 3.17.

explained this at the oral hearing of 25 November 2020. By submission of 13 November

2024, CDC again submitted evidence relating to the emissions damage.⁷⁷

9.5. A number of Truck Manufacturers have, in separate submissions of 7 May 2025,

produced reports from their own experts which (among other things) address the alleged

emissions-related damage:

•

Daimler submitted a report⁷⁸by E.CA Economics.

CNH/Iveco submitted a report⁷⁹by Compass Lexecon.

MAN submitted a report⁸⁰by Compass Lexecon.

Volvo/Renault submitted a report⁸¹by Frontier Economics.

CDC responded to these at the case management hearing of 3 June 2025, partly on the basis

of a presentation by Mr Bornemann of CDC Consulting.⁸²CDC also submitted a further CDC

Consulting report.⁸³The final debate on the emissions damage took place at the oral

hearing of 18–19 November 2025. On behalf of CDC, Mr Bornemann again gave a

presentation on that occasion.

9.6. The court observes at the outset that here too, it is for CDC to assert and substantiate

the existence and extent of this damage which, in its submission, was suffered by the

Assignors as a result of the Infringement (see 6.20 above). Furthermore, this loss arising

from the (late) introduction of new emission technology is not the subject of the Harrington

& Schinkel report, which sets out the theory of harm that the court finds plausible. The

question whether it is plausible that the Assignors have also suffered this form of damage

has not previously been addressed. The court finds that CDC has failed sufficiently to

⁷⁷Exhibits CDCR-0079 (USB stick), CDCR-0081, CDC I CLAIM CALCULATION — Overcharge,

operational damages, expert costs, and legal interest, October 2024, and CDCR-0082 (USB

stick).

⁷⁸Exhibit DAIM-0006, Expert opinion on the reports submitted by CDC, 6 May 2025.

⁷⁹Exhibit IVEC-0008, Economic assessment of the Schinkel Huberts Report on the

Quantification of Cartel Overcharges incurred by the Assignors to CDC Retail SA as a result of

the European Trucks Cartel, 6 May 2025.

⁸⁰Exhibit MAN-010, Economic assessment of CDC’s assessment of alleged collusive delay, 6

May 2025.

⁸¹Exhibit VTRT-0012, Response to CDC’s reports on alleged “delay damages”, 7 May 2025.

⁸²Exhibit CDCR-0084, Delay damages.

⁸³Exhibit CDCR-0089, Delay Damages 2025, Response to the defendants, 21 September

2025.

substantiate that the Assignors have (also) suffered this (form of) damage. This is

explained below.

9.7. The Truck Manufacturers dispute that there was any effective coordination regarding

the introduction of emission standards.

9.8. In the first place, the court finds that the Truck Manufacturers are correct in submitting

that the (body of the) Decision, with respect to agreements concerning the introduction of

new emission technologies, refers only to EURO III and EURO IV:

“(52) (…) During a meeting on 6 April 1998 in the context of an industry association

meeting, which was attended by representatives of the Headquarters of all of the

Addressees, the participants coordinated on the introduction of EURO 3 standard

compliant trucks. They agreed not to offer EURO 3 standard compliant trucks before

it was compulsory to do so and agreed on a range for the price additional charge for

EURO 3 standard compliant trucks.

(...)

(54) (…) For example during a meeting on 10 and 11 April 2003 in the context of an

industry association meeting, which was attended by, amongst others,

representatives of the Headquarters of all of the Addressees, discussions took place

concerning, amongst other things, prices and the modalities of the introduction of

Euro 4 standard compliant trucks, similar to the discussions that had previously

been held concerning the Euro 3 standard (see (52)).”

9.9. The Truck Manufacturers further illustrate this defence with the overview set out at

9.3 above. CDC submits that the dates of introduction cited are incorrect, but that

submission is not convincing. Specifically, CDC refers, amongst other things, to Table 3 from

the CDC Consulting report of 22 October 2020:⁸⁴

⁸⁴Exhibit CDCR-0052, Harm caused by collusive delay, 22 October 2020.

That table lists, for each EURO standard, the date of the first truck transaction found in the

CDC dataset. It shows that those dates differ from those provided by the Truck

Manufacturers. Table 3 generally contains later dates than those in the Truck

Manufacturers’ overview, but in a few cases also an earlier date. The report itself already

states that the dates mentioned in Table 3 do not imply that trucks meeting the relevant

EURO standard were introduced across the board on that date. It is therefore also possible

that the actual introduction took place earlier. Furthermore, the data are derived

exclusively from CDC’s underlying sources. All things considered, no firm conclusions can

be drawn from the dates in Table 3 regarding the respective introduction dates of trucks

with new emission standards.

9.10. With the overview in Table 3, CDC has therefore failed to demonstrate that effective

coordination took place. The overview in Table 3 in fact confirms the Truck Manufacturers’

position that the timing of introduction varies by emission standard and by Truck

Manufacturer, and that, with a few exceptions,⁸⁵the respective emission standards were

introduced before the statutory deadline, sometimes even years earlier.⁸⁶Implementation

therefore appears to deviate from what is stated in the Decision, namely that in respect of

EURO III and IV it had been agreed not to proceed with introduction until it was

mandatory. Those agreements were indeed made, but CDC has not, in the light of the

⁸⁵EURO IV (Renault, Iveco).

⁸⁶EURO V (all Truck Manufacturers).

overviews provided by both the Truck Manufacturers and CDC, shown that they were

actually implemented.

9.11. CDC further submits that, even if it were to be assumed that the prohibited

agreements were not fully complied with, that does not mean that the delay has suddenly

ceased to exist. According to CDC, the Assignors still suffer damage even in the event of

partial compliance with the cartel agreements. CDC also submits, on the basis of the Ryder

court document and by reference to the introduction of trucks with new emission

technology in the United States, that the Truck Manufacturers, irrespective of what the

Commission included in the Decision regarding the introduction on the statutory date, had

agreed to postpone the introduction of new emission technology, even though that

technology had already been developed (much) earlier. The accuracy of those statements

can be left aside, for the following reason.

9.12. CDC has submitted various reports to substantiate its claim for damages.⁸⁷Unlike the

regression analyses used to calculate the overcharge, those reports do not follow a proven

methodology. Furthermore, the reports lack a theory of harm underpinned by economic

theory. The reports are (entirely) based on theoretical assumptions and hypotheses which,

in particular in the light of the reasoned challenge by the Truck Manufacturers (see 9.2

above), are not, or at least not sufficiently, substantiated. These include, amongst other

things:

(i) the dates on which new emission technologies became available;

(ii) the dates on which the new emission technologies were actually introduced;

(iii) the point at which the Assignors would have decided to replace their existing trucks

with older emission technology with trucks featuring new emission technology;

(iv) the model of truck that would have been purchased as a replacement;

(v) the fuel consumption of the older trucks compared with that of new trucks;

(vi) the number of kilometres that would have been driven annually per truck;

(vii) the extent to which toll roads were used in Germany and France.

Those reports are therefore insufficient to substantiate the existence and extent of this

emissions damage.

9.13. Finally, CDC submits that the Truck Manufacturers also reached agreements on

passing on the costs of introducing new emission technologies, and that this has led to

higher purchase prices for trucks. This does not constitute damage related to the alleged

delayed introduction of trucks with new emission technology. It concerns an (alleged)

price-fixing agreement which has been factored into the overcharge. The court has ruled on

that in chapter 6 above.

⁸⁷Exhibits CDCR-0052, Harm caused by collusive delay, 22 October 2020; CDCR-0079 (USB

stick); CDCR-0081, CDC I CLAIM CALCULATION — Overcharge, operational damages, expert

costs, and legal interest, October 2024; CDCR-0082 (USB stick); and CDCR-0089, Delay

Damages 2025, Response to the defendants, 21 September 2025.

10. Pass-on defence

Position of the Truck Manufacturers

10.1. The Truck Manufacturers argue that it is highly likely that the Assignors, in their

capacity as transport undertakings, passed on any overcharge and/or higher operating

costs resulting from the Infringement in full to their customers. It follows from economic

principles that, given the specific characteristics of transport markets, it is highly likely that

transport service providers such as the Assignors pass on (and have passed on during the

period of the Infringement) higher costs for the use of trucks to the customers of transport

services.

10.2. The Truck Manufacturers refer to the Commission’s Passing-on Guidelines⁸⁸for the

factors that determine whether pass-on is to be expected in a given case. Those factors are:

The nature of the input costs

10.2.1. Fixed costs are costs that do not vary with whether an undertaking produces

more or less or provides additional services. Variable costs are costs that do vary as

output rises or falls. Economic theory suggests that price increases are generally

passed on more readily where they relate to variable costs, since those costs are

usually the determining factor in pricing. Fixed costs, in the short term, play no role

in this. According to the Truck Manufacturers it is plausible that transport

companies regard the purchase and running costs of a truck as variable costs which

are taken into account in pricing, because those costs are directly connected with

their core business: the provision of transport services. However, even if certain

transport companies (or other undertakings) had initially regarded such costs as

fixed, the duration of the Infringement (from 1997 to 2011) makes it plausible that

the parties involved in the course of time came to treat those costs as variable.

Whether costs are fixed or variable depends in part on the period under

consideration: the longer the horizon, the greater the proportion of costs that must

be classified as variable and, consequently, the greater the extent to which those

costs will have been passed on.

The nature of demand for the product

10.2.2. This concerns the relationship between demand and the price level. In

particular, it concerns the price sensitivity of demand in the market in which the

purchaser of the affected product operates — the downstream market: by how

much does demand change in response to price changes? In the present case,

according to the Truck Manufacturers, there are indications that price elasticity in

⁸⁸Communication from the Commission — Guidelines for national courts on how to

estimate the share of overcharge which was passed on to the indirect purchaser (2019/C

267/07) of 9 August 2019.

the market for transport services is low, meaning that demand for transport

services changes only to a limited extent as a result of price increases.

The strength and intensity of competition in the market in which the customers

operate

10.2.3. In strongly competitive downstream markets characterised by an industry-

wide overcharge, pass-on is common. In a highly competitive market — which,

according to the Truck Manufacturers, is the case for the road-transport market —

margins are low, so customers will necessarily pass on higher input costs. Given

those low margins, they cannot absorb the costs themselves. Furthermore, where

all, or a very large part of, the market participants are faced with the same higher

input costs, passing on those costs is also more likely to be feasible.

Other relevant factors

10.2.4. Other relevant factors include the proportion of an undertaking’s costs that

is affected by the overcharge, buyer power, price regulation, the timing of pricing

decisions at the various levels of the supply chain, cost-based pricing, and the use of

open-book contracts and back-to-back arrangements.

10.3. To substantiate the above submissions on the pass-on defence, the Truck

Manufacturers have submitted three reports:

•

an industry expert report by Prof. P. Klaus of 9 July 2021⁸⁹(the Klaus Pass-On Report);

an economic expert report by M.A. Williams of 14 July 2021⁹⁰(the Williams Pass-On

Report);

•

a report by Oxera of 4 March 2025⁹¹(the Oxera Pass-On Report).

The Klaus Pass-On Report and the Williams Pass-On Report concern customers of road-

transport services provided by third-party logistics (3PL) companies. Those reports were

not drawn up specifically for the present proceedings but were commissioned by Colgate-

Palmolive, the claimant in another Truck Case pending before this court (in the Second

Group of Truck Cases).

10.4. The Williams Pass-On Report proceeds on the basis of a 100% pass-on of the

(asserted) overcharge of trucks resulting from the Infringement to the customers of road

transport.

⁸⁹Exhibit TRUC-0062, Road Transport Pricing in the European 3PL Industry 1997–2011, 9

July 2021.

⁹⁰Exhibit TRUC-0063.

⁹¹Exhibit TRUC-0065, Economic analysis of the pass-on of truck costs in the road transport

sector, 4 March 2025.

10.5. The Klaus Pass-On Report reaches the same conclusion:

“What is the level of competitiveness in the European road transportation market

and how are prices set in that market, and do the characteristics of this market

indicate that any overcharge on the price of new trucks to truck purchasers, who

were providing transport services to the Plaintiffs, would have been passed on to

the Plaintiffs?

An in-depth discussion of the European road transport services market

corroborates the preliminary observation of the existence of a near-perfectly

competitive market by the criteria which competition economists apply. There is a

very large number of market participants on the supply side (up to 500,000 3PLs

overall). Primary products, such as FTL, LTL and Retail Distribution services are

highly standardized, "commodity-type" therefore easily compared and price-

sensitive for demand-side market participants. Entry barriers to the market (and

exit barriers) are low, allowing a continuous influx of new capacity. Market

transparency is high and continuously improving. As a consequence, profitability

levels are low. Only companies who are successful in carefully assessing their cost of

doing business and passing-on those cost to their customers in full can survive over

time. Despite of a great variety of pricing and contracting arrangements found in

transport markets, all indications drawn from the general description of the 3PL

service provider industry, and the in-depth study of the road transport market

segment suggest, that any cost and cost increases- including those that may be

caused by inflated new truck prices- will be passed on to the buyers and users of

road transport services.”

10.6. The conclusion of the Oxera Pass-On Report, which was drawn up specifically for the

present proceedings, is broadly to the same effect:

"In this report, Oxera has examined the characteristics of the logistics market in

Europe and in a number of case-study countries (Italy, Germany, France, Spain

and Portugal), and has formed an economic assessment of the likelihood and

extent of cost pass-on by (commercial) logistics companies. In particular, Oxera

has, in the light of the relevant economic framework, collected European and

country-specific market data and analysed the implications of those data for the

extent of supply pass-on. The characteristics of the European logistics market, the

market coverage of the Infringement, the treatment of truck costs and the pricing

policies of logistics companies indicate that pass-on by commercial logistics

companies operating in Europe is likely to be high. That finding is confirmed by

the available country-specific information, which shows that the Italian, German,

French, Spanish and Portuguese logistics markets are highly competitive.

Strong competition, combined with the nature of the relevant costs (in this case,

the costs of acquiring trucks), suggests that in all these countries a very large

proportion (possibly 100%) of the relevant costs is passed on."

10.7. The Truck Manufacturers further point out that customers of transport services have

themselves brought claims against the Truck Manufacturers (including the above-

mentioned Colgate-Palmolive), on the footing that the transport companies from which

they purchased those transport services passed on any increased truck costs to them, in

whole or in part. This also concerns the passing-on of costs by transport companies that

form part of the Assignors. Furthermore, some of the Assignors did not purchase the trucks

they use for their transport services themselves, but lease them from a leasing company.

CDC is, however, claiming damages both on behalf of lessees and on behalf of leasing

companies that have leased trucks to those same lessees. It is impossible that both should

have borne the alleged overcharge and/or the higher operating costs in full.

10.8. Any higher depreciation costs will, moreover, have been taken into account when

setting prices for transport services and products. Those costs may therefore have been

factored into the Assignors’ own prices, thereby fully or partially offsetting the alleged

overcharge. In addition to passing on costs to customers of transport services, the Truck

Manufacturers also consider it quite possible that some of the Assignors (i) have (partly)

factored the alleged higher truck costs into the price of the truck on resale on the second-

hand market, (ii) have benefited from a (higher) maintenance discount or (extended)

warranty on account of the alleged higher truck costs, and (iii) have paid lower taxes, as a

result of depreciation costs being charged against pre-tax profit.

Position of CDC

10.9. CDC submits that the pass-on defence must be categorically rejected. It advances

several grounds in support of that submission.

Factual (economic) grounds for categorical rejection of the pass-on defence

10.9.1. The costs of purchasing or leasing a truck are fixed costs. According to the

Passing-on Guidelines, it is less likely that such costs will be passed on. The Truck

Manufacturers are attempting to reclassify those fixed costs as variable costs that

can be passed on. That is incorrect, as the costs of purchasing or leasing a truck do

not rise or fall with the number of journeys or kilometres driven. In addition,

competition in the freight-transport market is fierce. That means that the Assignors

cannot pass on their fixed costs, in particular given the strong market power of

indirect customers.

Legal grounds for categorical rejection of the pass-on defence

10.9.2 According to CDC, there is no causal link between the additional costs and the

alleged passing-on of those costs. It refers to the TenneT/ABB judgment:⁹²

“In the case of any given undertaking, in the court’s view, the causal link

between additional costs on fixed assets and the passing on of depreciation

on those assets in customer prices is too remote to conclude, in general

⁹²District Court Gelderland 29 March 2017, ECLI:NL:RBGEL:2017:1724.

terms, that the increase in customer prices must reasonably be deducted

from the damage attributable to the infringer.”

Various foreign courts have likewise held that no causal link has been established

between the additional costs and the alleged passing-on of those costs, including the

Oberlandesgericht Stuttgart (Germany) in two judgments of 27 February 2025,⁹³and

the above-mentioned decisions of the CAT (in Royal Mail/BT v DAF) of 7 February

2023 and of the Borgarting Court of Appeal of 17 March 2025. The Truck

Manufacturers have failed to substantiate the causal link sufficiently and have also

failed to address volume effects and the resulting loss of profit caused by the alleged

passing-on.

Normative grounds for categorical rejection of the pass-on defence

10.9.3. To the extent that there is any pass-on of costs, CDC submits that the principle

of reasonableness requires that the portion of the additional costs passed on should

not be deducted from the damages payable by the Truck Manufacturers. In the TenneT

v ABB judgment⁹⁴the Supreme Court held that the principle of equivalence, the

principle of effectiveness and the scope of the Damages Directive are decisive. In the

present case, the Truck Manufacturers have raised the pass-on defence whereas, of the

approximately 750 Assignors, 19 have been identified as having entered into contracts

with indirect customers (of 3PLs) which are themselves claiming damages as a result

of the Cartel. Furthermore, CDC is aware of only one set of proceedings (in Germany)

in which indirect customers (of 3PLs) are claiming damages as a result of the Cartel.

The Truck Manufacturers have not adduced sufficient evidence from which it can be

inferred that the customers of the Assignors are actually claiming damages from the

Truck Manufacturers as a result of the Cartel. This is so even though the Truck

Manufacturers should by now have a complete overview of the indirect customers (of

3PLs) that are claiming damages as a result of the Cartel, yet they have not provided

any further information on this. What the Truck Manufacturers do argue is that

indirect customers too have suffered no loss because they would in turn also have

passed that loss on. That would mean that, if the pass-on defence were upheld, the

Truck Manufacturers could evade their liability and virtually all cartel damage would

remain unrecovered as collateral damage. That would be contrary to the above-

mentioned principles. There is established case-law of foreign courts holding that

reliance on the pass-on defence must be rejected on normative grounds: the

⁹³Oberlandesgericht Stuttgart 27 February 2025, 30 O 235/17 and 30 O 239/17 (Exhibit

CDCR-0094).

⁹⁴Supreme Court 8 July 2016, ECLI:NL:HR:2016:1483.

Landgericht Stuttgart (Germany)⁹⁵and the Borgarting Court of Appeal, according to

CDC.

10.10. CDC has submitted its own report, drawn up by Prof. J. Tuinstra (Professor of

Mathematical Economics at the University of Amsterdam),⁹⁶which considers the reports

submitted by the Truck Manufacturers. Prof. Tuinstra presented his report at the oral

hearing on 18 November 2025. The conclusion of his report is that there are only limited

possibilities for passing on an overcharge:

“CDC’s assignors (typically 3PL service providers) have purchased new trucks at

illegally increased prices from the trucks cartel. These increased truck prices

correspond to largely unavoidable fixed costs for the 3PL service providers because:

• The costs for new trucks do not vary with the number of contracts the 3PL service

provider engages in;

• The relevant short-run decision horizon for 3PL service providers for service

contracts is at most one year, whereas the decision horizon for purchasing new

trucks is at least five years, but often longer;

• Purchase prices for new trucks are largely sunk once made – as these trucks can

typically only be sold at substantially lower proces on the second-hand market.

Economic theory unambiguously teaches us that only increases in marginal costs

are passed on to indirect purchasers, certainly in the short run. It is therefore

abundantly clear that for none of the 3PL service providers it could have been

profitable to pass on any part of the overcharge on new trucks to its customers. I

also find that there is very limited scope for passing on the overcharge in the long

run in the European road transportation market, since there appears to have been

little effect on market dynamics.

The argument made in Oxera (2025) [the Oxera Pass-On Report, court] that

guidelines, published by trucker trade associations, led 3PL service providers to

interpret truck purchases as variable of marginal costs is entirely unconvincing –

any 3PL service provider that would have heeded that advice, would have hurt its

own business and failed to maximize profits. Similarly, I find that the scope for

resale pass-on is limited.”

10.11. CDC further submits that the Truck Manufacturers have failed to substantiate their

defence that the damage may have been offset, for example by adjustments to aspects of

⁹⁵Landgericht Stuttgart, 9 January 2025, 30 O 223/17, paras 5.1 and 5.2; Landgericht

Stuttgart, 27 February 2025, 30 O 235/17, paras 5.2.1 and 5.2.2; and Landgericht Stuttgart,

27 February 2025, 30 O 239/17, para 5 (Exhibit CDCR-0091).

⁹⁶Exhibit CDC-0090, Expert economic report on “The scope for passing on of truck cartel

overcharges to indirect purchasers”, 18 September 2025.

the transaction other than the transaction price (such as a higher maintenance discount or

an extended warranty) or by tax benefits. The Truck Manufacturers have failed to

discharge their burden of assertion. Moreover, there is no causal link between the

Infringement and any alleged advantage enjoyed by the Assignors.

10.12. Finally, CDC submits that, pursuant to Article 150 of the Dutch Code of Civil

Procedure, the burden of proof in respect of the pass-on defence rests on the Truck

Manufacturers. To that end the Truck Manufacturers rely (principally) on reports

commissioned by counsel acting for indirect purchasers, in which they do not shy away

from cherry-picking, relying on those reports only in so far as they suggest that there has

been a passing-on of damage allegedly suffered by direct purchasers, while expressly

disavowing the remainder of the content of those reports. They further rely on the Oxera

report they have submitted. In doing so, the Truck Manufacturers rely solely on “general

economic theories”. That is wholly insufficient in light of the standard (burden of proof)

resting on the Truck Manufacturers and the insufficiently rebutted premise, grounded in

economic theory, that fixed costs cannot be passed on.

Response of the Truck Manufacturers

10.13. According to the Truck Manufacturers, categorical rejection of the pass-on defence

leads to overcompensation and to a risk of multiple liability. They refer in that regard to the

Damages Directive. Under the Damages Directive, direct and indirect purchasers cannot

ultimately claim more compensation than the damage they have themselves suffered. The

Truck Manufacturers further point out that it is now established that several indirect

customers have brought claims in Groups 2 to 4 and in the Groupe Casino proceedings in

the Netherlands. In any event, Unilever, Colgate-Palmolive and BASF state that they

purchased transport services from ten CDC-related parties, who are claiming damages in

the CDC proceedings for a total of approximately 3,140 trucks. On the basis of the

documents submitted, the Truck Manufacturers have established that these and other

indirect customers also purchased transport services from nine other CDC-related parties

that are claiming damages in the CDC proceedings in respect of a further 3,111 trucks.

10.14. The Truck Manufacturers dispute that there are any factual (economic) grounds on

which the pass-on defence should be rejected. CDC argues that, on the economic principles

set out in the Passing-on Guidelines, it would have been impossible for the Assignors to

pass on to their customers the additional costs resulting from the Infringement. In doing so,

CDC wrongly assumes that the costs of purchase or lease are fixed costs. CDC does not

address the specific characteristics of the transport sector, on the basis of which it is on the

contrary plausible that those costs must be treated as variable costs and that it is highly

plausible that they were passed on to a large extent.

10.15. The Truck Manufacturers argue that CDC continues to lose sight of the fact that,

particularly in a highly competitive market, profit margins are low and it is highly likely

that any input costs would be passed on. As regards the market power of customers, the

Truck Manufacturers submit that it may be that purchase prices were not passed on in full,

or that customers were in part compelled to reduce their profit margins further as a result

of certain price mark-ups. That, however, can only be established on the basis of specific

information from the Assignors.

10.16. CDC further contends that if the pass-on defence is upheld, the Truck Manufacturers

could evade their liability and virtually all cartel damage would remain unrecovered as

collateral damage. CDC bases that contention on German case-law. In light of the case-law

of the Bundesgerichtshof, German courts too can, in principle, only reject the pass-on

defence on normative grounds after a detailed, case-by-case assessment of the downstream

markets and of the likelihood and extent of pass-on, the number of potential victims, the

potential scale of the damage, and thus the likelihood that infringers will face claims from

indirect customers. The lower German courts wrongly failed to assess the likelihood of

claims from indirect customers, according to the Truck Manufacturers. Furthermore, CDC

has also failed to substantiate that the indirect customers which have brought claims have

in turn passed on a price mark-up to their end customers and that this would result in

collateral damage that would remain unrecovered.

10.17. As regards CDC’s contention that the burden of proof in relation to the pass-on

defence rests on the Truck Manufacturers, the Truck Manufacturers take the view that they

have discharged that burden. They have produced sufficient qualitative and quantitative

evidence to show that (virtually) full pass-on is highly plausible. It was accordingly not

incumbent upon the Truck Manufacturers to provide further particulars or to substantiate

by way of documents which indirect customers of the Assignors are also claiming damages

from the Truck Manufacturers, in addition to the examples already provided. The burden of

proof concerning (the extent of) pass-on therefore shifts to CDC.

10.18. Contrary to CDC’s submission, it is not for the Truck Manufacturers to prove that

there has been no volume effect. It is for CDC to prove that such a volume effect has

occurred. The Passing-on Guidelines also expressly provide that, where the pass-on

defence is wholly or partly successful (without which volume effect would not be in issue in

the first place), the claimant bears the burden of proof in respect of the volume effect

resulting from pass-on.

Assessment

10.19. At the case management hearing of 3 June 2025 and in the run-up to the oral hearing

of 18–19 November 2025, it was agreed with the parties that the pass-on defence of the

Truck Manufacturers would initially be addressed solely at the conceptual/principled level.

10.20. Assessment of the submissions put forward to date by the parties leads, in light of

the foregoing, to the following conclusion. The burden of assertion and the burden of proof

in respect of the pass-on defence rest on the Truck Manufacturers. At the present stage of

the proceedings, the Truck Manufacturers have sufficiently substantiated that it is possible

that the Assignors, or some of them, passed on (part of) the higher purchase costs resulting

from the Infringement (the overcharge) to their customers/purchasers. Although CDC has

substantiated its contention that this is the case, that contention is insufficient to lead (at

this stage) to the conclusion that the pass-on defence cannot succeed for any of the

Assignors and must therefore be “categorically rejected”, as CDC has argued. That means

that the debate on the pass-on defence will need to be conducted in further detail. The

court wishes to consult with the parties as to how and when that debate can best be

conducted, partly in light of the fact that, as the Truck Manufacturers have submitted,

indirect purchasers have brought claims in Groups 2 to 4 and in the Groupe Casino

proceedings, and that in any event Unilever, Colgate-Palmolive and BASF submit that they

have purchased transport services from the Assignors.

11. Conclusion

11.1. In summary, the court finds that, in this judgment, rulings have been given on the

following points in dispute:

•

the defence of limitation under Dutch law (that defence fails);

the data to be used for the calculation of the damage (the CDC dataset);

the overcharge percentage (7%);

the run-off period (until 30 May 2013);

the emissions damage (to be rejected);

the methodology for the determination of the value of commerce;

the principles for the determination of the value of commerce;

the pass-on defence (no categorical rejection).

11.2. The foregoing means that, in these proceedings, the following matters must now first

be dealt with:

1.

2.

3.

the determination of the volume of commerce;

the determination of the value of commerce;

the pass-on defence.

The court will refer the case to the roll for the parties to submit a statement in which they

may give their views on the further course of the proceedings in relation exclusively to the

three issues mentioned above.

11.3. Finally, the court wishes to inform the parties of a change in the composition of the

panel hearing this case. Mr R.C.J. Hamming will take the place of Mr K.A.

Maarschalkerweerd for the remainder of the proceedings, following Mr

Maarschalkerweerd’s transfer to another judicial district.

12 The decision

The court

1.

2.

refers the case to the roll of 10 June 2026 for the parties to submit the statement

referred to in paragraph 11.2 above;

reserves all further decisions.

This judgment was given by R.A. Dudok van Heel, M. Singeling and K.A. Maarschalkerweerd,

judges, assisted by J.P.W. Manders, registrar, and pronounced in open court on 15 April

2026.