The Amsterdam Court has passed an important judgment in the cartel damage proceedings against the truck cartel. The court has rejected the truck manufacturers’ argument that the cartel cannot possibly have given rise to damage for customers.
The reason for these “follow-on” proceedings is the record fine of almost EUR 3 billion that the European Commission imposed on the five largest truck manufacturers in 2016 for violating the cartel prohibition. The truck manufacturers had been in contact for a period of 14 years about (gross) sales prices and the passing on of costs. That came to light when one of the truck manufacturers owned up to the Commission and was granted leniency. Three other truck manufacturers then settled the case in exchange for reduced fines.
Civil claims for damages were subsequently filed throughout the European Union by claimant organisations on behalf of customers such as transport companies. They have allegedly overpaid 10 to 15 percent due to the cartel agreements. Estimates of the damage range from €10,000 to €16,000 per truck. The claims total billions of euros. The class action before the Dutch court relates to more than 200,000 trucks.
According to the claimant organisations, the truck manufacturers’ unlawful actions consist of the infringement established by the Commission. The truck manufacturers have filed a defence, arguing that the Commission established an exchange of (gross) prices, not a price agreement, and that the Commission also has not established any price-increasing effect. According to the truck manufacturers, the claimant organisations’ assumption of damage is therefore incorrect. The truck manufacturers also dispute the actions established by the Commission.
With reference to the Otis judgment and Article 16(1) of Regulation 1/2003, the court first of all noted that it must limit its assessment to the actions established by the Commission in the operative part of its ruling, but is not bound by the very brief description of the specific, factual actions identified in the ruling. According to the court, concerted practices took place and specific agreements were made. In light of the settlement reached with the Commission, the court disregarded the fact that the truck manufacturers question the correctness of the ruling. The court also rejected the defence that the contact cannot possibly have given rise to higher prices and that customers consequently incurred damage. In the court’s opinion, the truck manufacturers have not provided any convincing explanation of the purpose of the exchange of (gross) prices, which took place over a period of many years.
The court has thereby again shown a lenient approach to claims for damages based on breaches of competition law. The court will now assess for each individual claimant whether the threshold for referral to assessment of loss proceedings has been met. To be continued.
Information on down raids by ACM and the European Commission can be found at www.invalacm.nl