On July 6, 2021, the Court of Naples upheld a claim for damages filed by a logistics company (the “Applicant”) against one truck manufacturing company (the “Defendant”) in connection with the purchase of a truck falling within the scope of a European Commission decision of July 2016 (the “2016 Decision”).[1] The 2016 Decision established that the Defendant and four other truck manufacturers colluded for 14 years on truck pricing and on passing on the costs of compliance with emission rules.[2] While several similar claims are currently pending in Italy, this is the first known case in which a court awarded damages.

Interestingly, notwithstanding that the Court of Naples had ordered an expert opinion to quantify the alleged damages, it eventually decided to quantify the damages solely on equitable principles.

Background

The European Commission decision

Following an immunity application submitted by German truck manufacturer MAN, in January 2011 the European Commission (the “EC”) initiated investigations and carried out unannounced inspections at the premises of six truck manufacturers.

On July 19, 2016, the EC adopted a settlement decision,[3] in which it concluded that the truck manufacturing groups Volvo/Renault, Daimler, Iveco, MAN and DAF had colluded for 14 years on truck pricing and on passing on the costs of compliance with stricter emission rules.

In particular, the EC’s investigation revealed that, between 1997 and 2011, the truck manufacturers had engaged in a collusive agreement aimed at coordinating: (i) the prices at “gross list” level for medium and heavy trucks in the European Economic Area; (ii) the timing for the introduction of emission technologies for medium and heavy trucks to comply with the increasingly strict European emissions standards (from Euro III through Euro VI); and (iii) the passing on to customers of the costs incurred in order to comply with the abovementioned emissions standards.

The EC granted MAN full immunity from fines and imposed fines of a record amount of €2.9 billion overall on Volvo/Renault, Daimler, Iveco and DAF. Another truck manufacturer (Scania) decided not to settle and was fined €880 million by the EC on September 27, 2017.[4]

The judgment of the Court of Naples

Based on the 2016 Decision, the Applicant brought a claim for damages against the Defendant before the Court of Naples in connection with the purchase of one Iveco Magirus truck in 2007. The Applicant quantified the damage it claimed to have suffered as 20% of the truck’s purchase price.

The Court of Naples rejected the statute of limitations defense and the arguments concerning the limited evidentiary value of settlement decisions raised by the Defendant. In particular, the Court ruled that: (i) the claim was not time-barred, because the Applicant could not have known that it had suffered harm before the publication of the 2016 Decision; (ii)although adopted in the context of a settlement procedure, the 2016 Decision has the same evidentiary value as an ordinary infringement decision.

In addition, the Court of Naples held that the Applicant could seek damages from the Defendant, even though the Applicant had purchased the truck at stake not directly from the Defendant, but from a third-party dealer. According to the Court of Naples, the fact that the overcharge was ultimately borne by the Applicant could be presumed in this case, as the Applicant proved that: (i) the Defendant had infringed competition rules; (ii) the infringement had altered the pricing of trucks; and (iii) the Applicant had purchased, even though only indirectly, one of the goods falling within the scope of the infringement. Against this background, the Court of Naples concluded that the overcharge had been passed on to the Applicant, while the Defendant had failed to prove that the Applicant had, in turn, passed on any overcharge to its own customers.

In light of the above, the Court of Naples considered it necessary to appoint an independent expert to quantify the actual damage suffered by the Applicant. The expert made reference to the EC’s Practical Guide,[5] but was not able to reach a conclusion supported by economic or econometric evidence. Accordingly, the expert referred the case back to the Court of Naples, and suggested quantifying the damage on an equitable basis. The Court of Naples agreed that it was not possible to objectively quantify the damage in the case at hand, also because the Applicant was an indirect purchaser of the goods covered by the infringement found by the 2016 Decision.

The Court of Naples thus ordered the Defendant to pay the Applicant 15% of the truck’s net purchase price, i.e. € 11,550.

The judgment is the first known decision in Italy awarding antitrust damages based on the 2016 Decision. It suggests that, faced with relatively small claims, courts may prefer to follow equitable solutions, instead of engaging in complex and time-consuming estimates of the damage.

While this approach may seem practical from a procedural efficiency standpoint, it might raise some due process issues. It remains to be seen whether the judgment will be upheld on appeal and, possibly, followed by other courts.

[1] Court of Naples, Judgment of July 6, 2021, No. 6319.

[2] European Commission, Decision of July 19, 2016, Case AT.39824 – Trucks.

[3] In a settlement, companies acknowledge their participation in a cartel and their liability for it. Settlements are based on EC Regulation No. 1/2003 and allow the Commission to apply a simplified and shortened procedure. The parties benefit from the settlement procedure in terms of faster decisions and a 10% reduction in fines.

[4] European Commission, Decision of September 27, 2017, Case AT.39824 – Trucks.

[5] European Commission, SWD(2013) 205, Strasbourg 6 November, 2013 (“Quantifying harm in actions for damages based on breaches of article 101 or 102 of the Treaty on the Functioning of the European Union”).