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,
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
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