On 17 December 2013, the Regional Court of Düsseldorf dismissed a damages claim of approximately € 131 million brought by the Belgian company CDC Cartel Damages Claims SA ("CDC") against cement manufacturers Cemex Deutschland AG, Dyckerhoff AG, Lafarge Zement GmbH, Schwenk Zement KG, HeidelbergCement AG and Holcim Deutschland AG.
The claim was a follow-on action to a prohibition and fining decision adopted in 2003 by the German Federal Cartel Office ("FCO") against cement manufacturers for anti-competitive agreements (fines werereduced but the infringement as such was upheld by the Higher Regional Court of Düsseldorf in June 2009 and by the German Federal Court of Justice in February 2013 – see VBB on Competition Law, Volume 2013, No. 4, available at www.vbb.com). CDC had been assigned a number of claims by private parties allegedly injured by the anticompetitive conduct of the cement manufacturers.
The admissibility of CDC's damages claim before the Regional Court of Düsseldorf was first discussed in court and affirmed by the Higher Regional Court of Düsseldorf in May 2008 (see VBB on Competition Law, Volume 2008, No. 5, available at www.vbb.com) and by the German Federal Court of Justice in April 2009 (see VBB on Competition Law, Volume 2009, No. 4, available at www.vbb.com).
On the merits, the Regional Court of Düsseldorf has now rejected the claim because it found that the assignment of claims by alleged victims to CDC before 1 July 2008 was invalid because the latter was not formally admitted to pursue claims of a third party and therefore infringed the German Legal Advice Act, as applicable at the time. The Regional Court of Düsseldorf further found that, as regards claims assigned after the amendment of this law in July 2008, the assignment was contrary to public policy and therefore invalid because it unduly shifted the financial risk for the proceedings towards the defendants. The underlying assignment contract between CDC and the alleged victims of the cartel provided that the latter would receive between 65% and 85% of the compensation should CDC win the case. The Court found that at the same time CDC did not have the financial means to pay the costs of the proceedings if it were to lose the case. Therefore, the assignors would benefit from the arrangement of a success fee with CDC while not bearing the financial risk which was thus shifted towards the defendants.
The judgment can be appealed to the Higher Regional Court of Düsseldorf.
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