On September 23, 2020, the FCJ handed down its much anticipated first judgment in relation to damages claims resulting from the trucks cartel and provided helpful clarifications on some key questions regarding cartel follow-on damages actions.[1]
Background
In 2016, the European Commission had found that several truck makers had infringed EU antitrust rules by agreeing on prices at “gross list” level for medium and heavy trucks, the timing for the introduction of emission technologies, and on passing on the costs of compliance with stricter emission rules, for 14 years. Most of the truck makers acknowledged their involvement and agreed to settle the case with the European Commission.
The FCJ Decision
The FCJ has set aside a decision of the Stuttgart Higher Regional Court and refers the case back to the lower instance. The FCJ has taken a position on a number of critical issues, which must now be taken into account by the Stuttgart Court, when rendering its decision:
BROAD SCOPE OF BINDING EFFECT ALSO IN SETTLEMENT CASES
First, the FCJ stressed the binding effect of all factual and legal findings of the European Commission decision. It rejected the defendants’ argument that this binding effect should be excluded or limited in the present case because the decision was issued in the context of settlement proceedings. The FCJ clarified that the defendants had agreed to the findings on the antitrust infringement as part of the settlement.
FACTUAL PRESUMPTION FOR DAMAGES EXISTS BUT NEEDS TO BE APTLY APPLIED
Second, the FCJ confirmed the existence and potential relevance of a factual presumption for damages in cartel follow-on cases. According to the FCJ, there is a high probability of cartel- induced overcharges in the present case, as the infringement found by the European Commission went beyond a mere exchange of information.[2] Even if the truck makers only agreed on gross list prices (and not on final net prices, i.e., prices minus all discounts and rebates), it would have to be assumed that the agreement on the gross list prices also had some influence on the final net prices. However, the FCJ held that the Stuttgart Court had not sufficiently taken into account all factual circumstances when assessing whether the conditions for a factual presumption existed in the present case. Instead, it had relied on abstract considerations and thus—erroneously—shifted the burden of proof to defendants.
SUSPENSION OF LIMITATION PERIOD IS ALREADY TRIGGERED BY INITIATION OF INVESTIGATION
Third, the FCJ clarified that a suspension of the statute of limitations is already triggered by the initiation of the European Commission’s investigation, and not—as was regularly argued by defendants in follow-on damages cases—only by the formal decision to initiate cartel proceedings.
[1] Truck Cartel (KZR 35/19), FCJ judgment of September 23, 2020, only available in German here.
[2] The FCJ deliberately left unanswered the question of whether a factual presumption would also apply in cases with only a mere exchange of information.