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  • Cartel Damages
  • 19-05-2021

On 12 May 2021, the Amsterdam District Court rendered a judgment in cartel damages cases concerning trucks, providing various substantive decisions about the claims for damages brought against multiple truck manufacturers (decision available here, in Dutch). These cases follow a settlement decision adopted by the European Commission in 2016 describing, in short, collusion by truck manufactures on truck pricing and on passing on the costs of compliance with stricter emission rules. According to the settlement decision, those practices constituted an infringement of EU competition law (Article 101 TFEU). The claimants in the cases leading to the Amsterdam District Court's judgment of 12 May 2021 allege to have suffered harm as a result of that infringement. We highlight three noteworthy issues addressed by this judgment.


#1 – A cartel can have lingering effects
 

The first issue pertains to so-called lingering effects (also referred to as after-effects). The claimants in these cases are also claiming damages pertaining to the time period beyond the infringement period described in the European Commission's infringement decision. They argue that cartels have a lingering effect, which generally means that – in short – cartels can still produce effects (for example on prices) after the infringing practices have come to an end.  

The Amsterdam District Court notes in its judgment that it is indeed generally accepted that a cartel can have a lingering effect. According to the court, it is not obvious that any effects of a cartel immediately cease at the end of the established infringement period. However, the court also rules that in these particular damages cases it is currently not possible to establish whether there have been any lingering effects giving rise to claims for compensation, since it has not been established whether in these cases the infringement has had any effects at all. According to the court, further analysis is required in that respect. 

# 2 – The "entirety" of the settlement decision is "binding" (or at least to some extent)
 

The second issue pertains to the binding effect of the European Commission's settlement decision about the infringement. Generally, infringement decisions of the European Commission consist of the operative part, containing the actual decision, and the recitals, addressing the background and reasoning for the decision laid down in the operative part. With reference to the ECJ's Otis-judgment and article 16 (1) of Regulation 1/2003, the Amsterdam District Court rules that it shall consider the entirety of that settlement decision as binding, and that – when determining the exact content and essence of the operative part – it shall take into account that the recitals serve to substantiate and explain the infringements described in the operative part. The "entire" settlement decision being "binding", however, seems to be less clear-cut and far-reaching than this particular ruling might at first suggest. The court goes on explaining in its judgment that the infringement that has been established in this settlement decision can – and should be – further interpreted in light of the claims for damages that have been brought. For that reason, the court then goes on noting that it does not consider itself bound to the very brief description of the specific, factual conduct provided in the settlement decision. In addition, the court also explicitly leaves room to dispute the settlement decision's recitals, if adequately substantiated. The court rules, however, that the defendants in these cases have not done so, and for that reason shall assume that the settlement decision's recitals are correct.

#3 - Article 101 TFEU has a limited geographical scope
 

The third and last issue we address here pertains to the limited geographical scope of article 101 TFEU. Claimants adopt the position that, although the European Commission's jurisdiction is limited to the EEA, the scope of the alleged infringing practices of truck manufacturers was not. Therefore, according to the claimants, compensation may also be sought for trucks purchased outside of the EEA, including purchases that occurred in a country that, at the time of the transaction, was not yet part of the EU/EEA. The court is very clear on this point: for the period in which the relevant country was not yet a member of the EU/EEA, there can be no infringement of Article 101 TFEU. In that period, the treaty did not apply for that specific country. Therefore, to the extent claims for damages are based on Article 101 TFEU, the place where the truck was purchased matters according to the court. 

The court concludes in this judgment that it cannot be ruled out that the infringement has caused harm to the claimants. According to the court, every individual claimant will now have to make plausible that it has potentially suffered harm as a result of unlawful acts of the truck manufacturers. This has not yet been assessed by the court. A hearing has been scheduled for 27 May 2021 to discuss the next steps of the proceedings. 

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