Business News Radio, a national radio station in The Netherlands, interviewed Adriaan Buyserd, lawyer at BANNING Advocaten, to find out about the chances of success in one of the larges cartel damages claims actions ever.
On 19 July 2016, the European Commission imposed record cartel fines on five truck construction companies. They had engaged in a cartel between 1997 and 2011. In this so-called ‘Truck Cartel’, DAF, Volvo/Renault, Daimler and Iveco chose to settle. They had to pay the EU a fine of (in total) EUR 2,9 billion. Amongst others, for illegal price agreements. MAN, who blew the whistle on this cartel, was rewarded and did not have to pay a cartel fine. Scania, finally, refused to acknowledge guilt. It chose to litigate against the European Commission.
Pursuant to these public law cartel fines, so-called ‘follow-on’ procedures can be initiated before national civil law courts. In these procedures, cartel victims try to be compensated for damages. Their position is that they have been overcharged, every time they bought a middle- or heavy-sized truck during the cartel.
Yesterday, MKB-Claim stated it was the first to go to court in The Netherlands. The claim organisation says it represents 3000 companies, in particular transport companies. They feel they have paid thousands of euros too much, every time they purchased a truck from the cartel. MKB-Claim hopes for a settlement. But the fined cartel participants feel these customers have not actually suffered damage. It is possible they will argue these customers have passed on any overcharge to their own customers. That would mean they themselves did not actually suffer any damages.
BNR asked Adriaan Buyserd how a law firm specialised in cartel damages claims, such as BANNING Advocaten, would estimate the chances of success:
- At the very least, it is clear that cartel damages claims almost invariably involve long-running, complex procedures. It is a relatively novel area of the law. Case law is still under development. Putting forward legal and economic arguments, can be very complex indeed.
- In other EU Member States, e.g. Ireland and the U.K., law firms have already initiated cartel damages litigation. In concerns claims worth billions of euros. If, in the end, these are awarded, that would be an enormous blow to the former cartel members.
- In addition to the material complexity of this type of case, professional support should also be taken into account. In The Netherlands, only a very small number of large law firms has experience litigating cartel damages claims.
- A superspecialist in this area of the law, Hausfeld & Co, is preparing its own cartel damages claim before Dutch courts. It will act on behalf of TVM Verzekeringen, an assurance company, and Transport en Logistiek Nederland (TLN), a sector representative.
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