Actions for damages arising from antitrust infringements: the cartel of European truck manufacturers and possible claims to be brought by vehicle purchasers against the cartel companies.
Just over a year ago, the European Commission announced the imposition of a penalty of almost three billion euros on Europe’s five largest truck manufacturers (MANN, DAIMLER -Mercedes-, VOLVO-RENAULT, IVECO and DAF) for having formed and maintained for almost fourteen years a cartel in which they exchanged information on the gross price lists of their products and determined when and how to implement European emissions standards.
The cartelists opted to take advantage of the Commission’s leniency program and, in addition, requested that the case be processed on a transactional basis, in order to obtain the maximum reduction of the penalties provided for in the applicable regulations. This obviously implies expressly accepting the existence of the cartel and the liabilities derived from such collusive conduct.
The aforementioned Commission Decision, announced on July 19, 2016, was published in the Official Journal of the European Union on April 6, 2017 and since then (and already before) has produced an intense commotion not only among the purchasers of trucks during the term of the cartel (1997-2011) but also in several law firms that have been launched to lead the millionaire claims to be made to the cartelists for their unlawful conduct.
Our firm is very familiar with the matter, having filed and managed on behalf of Nestlé and other large companies the first judicial claim for private damages arising from a cartel, specifically the so-called “sugar cartel”, which ended with the historic judgment of the First Chamber of the Supreme Court of November 7, 2013, which is the only jurisprudential precedent in this area in our country, of obligatory citation and basis for any future claim.
Any action for damages against cartelists requires the utmost caution. Even if they have acknowledged their liability, there are innumerable issues that must be analyzed in depth before initiating litigation, such as determining who is sued, when and where. And, above all, to have a rigorous expert’s report that develops a system of quantification of the damage based on objective elements that is reasonable. Analyzing what would have happened to truck prices between 1997 and 2011 if the cartel had not existed (what the Supreme Court calls a “counterfactual hypothetical situation“) is an enormously complex issue.
Those of us who work in this area were eagerly awaiting the transposition into Spanish law of Directive 2014/104/EU on damages claims for infringements of competition rules, finally produced a few weeks ago through Royal Decree-Law 9/2017 which, among others, amends the Law on Defense of Competition and the Civil Procedure Act, and this in order to have more weapons in litigation against cartelists.
However, the reality is that the transitional regime established by the legislator, which does not provide for the immediate application of the new provisions of the Antitrust Law to claims such as the one analyzed here, has caused some disappointment among experts in the field, who saw great support in issues such as the right to full compensation, the presumption of damage in cases of cartels, the joint and several liability of cartelists, the extension of the statute of limitations to five years and, above all, in my opinion, in the power that the new law grants judges to set the amount of compensation with a certain degree of discretion when the quantification of the damage is extremely difficult or impossible (a common case in this area).
For all these reasons, it is now time to continue analyzing the issue and to delve into the quantification of the damage, having sent to the cartelists, out of extreme prudence, a communication to interrupt the annual prescription of article 1,902 of the Civil Code.
The defense of the cartelists seems clear from the information we already have from the first extrajudicial claims. On the one hand, they will argue that the collusive practice for which they were sanctioned (exchange of information on price lists) did not affect, strictly speaking, the prices finally paid by customers in each country and that, consequently, there is no damage whatsoever. And, on the other hand, they will probably invoke the so-called “passing on” defense, arguing that the possible damage caused to the purchasers of the trucks would have been derived by them downstream by increasing the amount of their tariffs.