On 18 December 2017, the Regional Court of Hanover (the "Court") ruled that the city of Göttingen is in principle entitled to cartel damages against truckmaker MAN, the amount of which is to be determined in a subsequent judgment. The claim concerns a follow-on action to an infringement decision of the European Commission dating from July 2016, establishing the participation of MAN, Volvo/Renault, Daimler, Iveco and DAF in a 14-year price-fixing cartel in the truck sector (see VBB on Competition Law Volume 2016, No. 7, available at www.vbb.com).
The city of Göttingen claimed damages for 13 vehicle purchases for its departments of firefighting and waste collection and sought damages of approximately € 335,000 plus interest. The Court rejected part of the claim for purchases which fell outside the period of MAN's involvement in the infringement.
The Court then examined the validity of a lump sum damages clause in the standard terms of the purchase agreements providing for compensation of 15% of the total sales volume. Similarly to a judgment of the Thuringian Higher Regional Court concerning the rail construction sector (see VBB on Competition Law Volume 2017, No. 6, available at www.vbb.com), the Court decided that such a standard clause is valid unless: (i) the other party to the contract is not expressly allowed to show that a loss has either not occurred or is substantially lower than the lump sum, or (ii) the lump sum exceeds the loss expected under normal circumstances. In the present case, the clause expressly allows MAN to demonstrate that the actual loss is lower and the Court took account of the fact that economic studies showed that cartel damages amount to a median value of 18%.
MAN's passing-on defence, claiming that ultimately cartelised prices were borne by the taxpayers and not by the city of Göttingen, was dismissed by the Court for lack of a secondary market (the vehicles were not resold to the taxpayers). The Court also took a stand on the debated issue concerning the application of a provision which suspends the statute of limitations during cartel investigations of the EU Commission or a competition authority of a Member State, siding with previous judgments which held that the provision is applicable to claims which came into existence before the provision became effective (see VBB on Competition Law Volume 2017, No. 6 and 9; Volume 2015, No. 4, available at www.vbb.com).
More judgments on follow-on damages claims in the truck sector are to be expected. According to press releases, a number of other actions have already been filed: (1) a claim by financial right, a debt collection service provider, of assigned rights from over 3,200 companies before the Higher Regional Court Munich exceeding € 500 million, (2) a claim by ELVIS, the European Freight Association for International Transporters, of assigned rights from more than 300 companies before the Regional Court Stuttgart for € 176 million, (3) a claim by the German railroad company Deutsche Bahn, to which the German Army and 40 companies assigned their rights concerning the purchase of 35,000 trucks for a value of approximately € 2 billion before the Higher Regional Court Munich and (4) a class action by CDC (Cartel Damage Claims) representing over 400 companies and concerning a purchase volume of 50,000 trucks before a Court in Amsterdam.
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