On 18 December 2017, the Hannover Regional Court (the "Court") handed down the first German judgment confirming the liability in principle of truck manufacturer MAN towards the city of Göttingen for truck purchases made during the operation of the truck cartel. MAN was one of the companies which the European Commission found to have participated in the truck cartel (the "Commission Decision").
Whilst the judgment has not yet ruled on the appropriate level of damages, it has held that there is a high likelihood that the cartel led to an overcharge. In particular, the Court held that it must be presumed that the cartel caused truck prices to increase, that each truck purchase at stake was affected by the cartel and that there is a high likelihood that the cartel therefore led truck purchasers to suffer damage. The Court dismissed various counter-arguments put forward by MAN against these presumptions.
The Court also held that a clause in the General Terms of Business of the city of Göttingen, providing for an assumption of damages of 15% where purchases were affected by anti-trust infringements was valid, holding that this percentage does not appear excessive compared to the level of damages which is to be expected.
MAN's argument that Göttingen passed on its losses was rejected by the Court. According to the Court, this would as a first condition require the existence of a downstream market level (i.e. a market level in which the claimant supplied products or services affected by the cartel to its customers) characterised by supply- or demand-side competition. The Court did not consider that such a downstream market level existed for the products and/or services provided by Göttingen with the trucks purchased from the OEMs (i.e. waste disposal and city cleaning).
As regards limitation, the Court held that knowledge of the Commission's dawn raids was insufficient to cause time to begin running for the purposes of the knowledge-dependent limitation period. The Court considered that Göttingen did not have sufficient knowledge for these purposes until it became aware of the Commission Decision in July 2016. Also, according to the Court, the 10 year knowledge-independent longstop limitation period had not yet expired because the limitation was suspended from the commencement of the investigation (date of the dawn raid on 18 January 2011) until six months after the conclusion of the investigation (i.e. 19 January 2017).
Judgment on the amount of the damage and on interest is still awaited.
Damages claims against the truck manufacturers who participated in the truck cartel (MAN, Daimler, Iveco, Volvo/Renault, DAF und Scania) has just started in the UK, the Netherlands, Spain and Germany. According to press coverage, more than 100 damages actions are already pending in Germany and, in light of this claimant-friendly judgment on the matter, it can be expected that more claims will follow.
