On 28 February 2019, in a series of six judgments, the Regional Court of Stuttgart ruled in favour of damages claims based on the infringement decision of the European Commission establishing the participation of MAN, Volvo/Renault, Daimler, Iveco, DAF and Scania in a fourteen-year price-fixing cartel in the truck sector (see VBB on Competition Law, Volume 2016, No. 7, available at www.vbb.com and Volume 2017, No. 9, available at www.vbb.com).
The Regional Court of Stuttgart ruled that the damages claims, covering the purchase of nearly 100 vehicles in total, were mostly well founded, but rejected certain claims where the causal link between the infringement and the injury could not be established due to the action of an intermediary or the timing of the purchase.
All the judgments address the issue of prima facie evidence and the applicability of the (rebuttable) factual presumption previously raised by a judgment of the Federal Court of Justice of 11 December 2018 (see VBB on Competition Law, Volume 2019, No. 1, available at www.vbb.com). The Federal Court of Justice had held that for quota and client allocating cartels, the existence of a cartel is not prima facie evidence for the harm, or for the fact that the cartel affected individual purchases. Instead, a rebuttable presumption applies.
The Federal Court of Justice clarified that the applicability of prima facie evidence requires a typical chain of events which, according to general experience, leads to the fact that needs to be proven. When prima facie evidence applies, it is sufficient for the claimant to bring evidence for the facts which trigger the general experience and it is not necessary to demonstrate the course of events in the specific case. In order to challenge prima facie evidence, the defendant needs to demonstrate and prove that, in the case at hand, exceptionally special circumstances led to an atypical chain of events.
In its ruling, the Federal Court of Justice had held that, due to the varying unique aspects of cartels, market conditions and the conduct of participating companies must be examined on a case-by-case basis. In particular, quota and client allocating cartels do not so typically lead to harm that there would be a general experience that could be used for prima facie evidence to apply. Instead, a factual presumption applies. A factual presumption requires circumstantial evidence which points to the fact that needs to be proven. In order to challenge a factual presumption, the defendant needs to demonstrate and prove that the presumption is not accurate. This can for example be done by showing that a certain result could be caused by a different reason. This is generally easier than challenging prima facie evidence, where it would need to be proven that in the actual case the result was indeed caused by a different reason.
The wording of the decision of the Federal Court of Justice raised controversy as to whether its reasoning could also be applied to cartels other than quota and client allocation, such as price-fixing cartels.
In its recent judgment, the Regional Court of Stuttgart held that it could leave this question undecided. It found that the claimant had brought sufficient circumstantial evidence to substantiate the factual presumption that the harm was caused by the cartel and that the cartel affected individual purchases, and the defendant had not rebutted such presumption. In addition, the Regional Court of Stuttgart stated that, should prima facie evidence apply in the case of price-fixing cartels, then the defendant did not convincingly challenge such prima facie evidence.
The Regional Court of Stuttgart thus accepted most of the damages claims based on the purchase of trucks at cartelized prices. It however rejected damages claims in two scenarios (i) indirect purchases from an independent intermediary and (ii) purchases outside of the duration of the cartel or in its very early stage.
The Regional Court of Stuttgart ruled that neither prima facie evidence nor a factual presumption apply if the trucks were not purchased directly from one of the manufacturers involved in the cartel but instead were leased from an independent intermediary. This is because there was no evidence to suggest that higher cartel prices also led to higher leasing rates.
Relying on a similar reasoning, the Regional Court of Stuttgart also excluded damages for purchases outside the duration of the cartel or for purchases made within the first year of the cartel. While the Court takes the widespread view that cartels have effects up to one year after the cartel has ceased to exist, it held that claims relating to purchases made within one year of the initiation of the cartel should be excluded given that the implementation of an anticompetitive agreement usually takes a certain amount of time to affect prices.
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