On 18 February 2015, the Higher Regional Court of
Düsseldorf ("the Court") upheld an earlier judgment
of the Regional Court of Düsseldorf of 17 December 2013
rejecting a damages claim in the amount of approximately
€ 131 million brought by Cartel Damage Claims SA
("CDC") against members of a cement cartel (see VBB on
Competition Law, Volume 2014, No. 1, available at
CDC is a Belgian company that specialises in enforcing claims of
third parties injured by competition law infringements. In the
present case, 36 companies ("assignors") had assigned
their claims against the members of a cement cartel to CDC. These
claims follow a prohibition and fining decision adopted in 2003 by
the German Federal Cartel Office ("FCO") against cement
manufacturers for anti-competitive agreements.
The assignments of claims for damages to CDC was based on sales
contracts pursuant to which, in return for assigning their damages
claims to CDC, the assignors received a lump sum of € 100
and a prospective 65% to 85% of the damages in the event of a
successful outcome of CDC's legal action against the members of
the cement cartel.
During interim proceedings, the admissibility of CDC's
damages claim was examined by the court. The admissibility of
CDC's claim was 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, on appeal, by the German Federal Court of
Justice in April 2009 (see VBB on Competition Law, Volume 2009, No.
4, available at
On the merits of the case, the Court, in its 18 February 2015
judgment, upheld the Regional Court of Düsseldorf's
earlier decision of 17 December 2013 and rejected the appeal filed
Like the Regional Court, the Court found that the assignment
agreements concluded before 1 July 2008 were invalid because
at that time CDC was not formally admitted to pursue claims of a
third party and therefore infringed the then-applicable German
Legal Advice Act.
As regards claims assigned after the amendment of this law in
July 2008, the assignment was considered to be contrary to public
policy because it unduly shifted the financial risk for the
proceedings towards the defendants since CDC did not have financial
means to pay the costs of the proceedings if it were to lose the
case. Contrary to the assertions of CDC, the Court found that the
shifting of the financial risk for the proceedings was the main aim
of the assignment. The Court held that this could be concluded from
the clear discrepancy between the rights and obligations agreed
upon in the assignment contracts: whereas the assignors would
receive a share of 65% to 85% of the damages obtained in case of a
successful outcome of the legal action, their contributions to
costs for the preparation and conduct of the proceedings were
minor. According to the Court, since the assignment is contrary to
public policy it is void and CDC therefore has no legal capacity to
assert the claims for the damages in question.
Further, the Court found that claims against two members of the
cartel were time barred. This is because CDC, due to the assignment
agreements being void, did not have legal capacity to assert claims
which thus did not interrupt the applicable limitation period.
The Court did not decide whether new assignment agreements
concluded in 2014, when CDC claims to have been sufficiently
solvent, are valid as it did not accept CDC's application for
amendment to its initial damages claim to include the new
assignment agreements of 2014.
Finally, CDC's claim was rejected because it had been based
on a "national" cartel, while the FCO's fining
decision had unveiled regional cartels and, according to the Court,
a national cartel did not in fact exist. An application for
amendment of the claim submitted in this respect was equally
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