On 23 September 2021, the Federal Court of Justice (BGH), Case No. KZR 35/19, ruled on fundamental liability and fully confirmed the legal opinion of the plaintiffs. There was not only an exchange of information, but – as emphasised in several sections – even a price cartel, i.e. a hard-core cartel, and thus the worst violation of competition, as also bindingly stated by the Commission.
The defendants also admitted this fact in the context of the settlements and have thereby explicitly agreed to it. As a result, it was not possible for the defendants to dispute these facts in the civil proceedings.
Now the second and third judgements of the Federal Supreme Court, file numbers KZR 19/20 and KZR 20/20, have also been published. These are also entirely positive for the plaintiff’s side and confirm that compensation is also available for leasing purchases and for purchases from dealers.
In short, the prospects for legal action remain unchanged and have even been improved.
Next, the regional courts will begin to decide on the amount of damages. Also important: in a recent ruling, the Higher Regional Court of Frankfurt am Main did not allow an appeal to the Federal Supreme Court. This is a clear indication that the fundamental issues of liability in the truck cartel case have now been clarified and that the regional courts can now work through the cases on the basis of fixed guidelines.
There are now about 65 judgements in the truck cartel case, which draw a favourable picture of the case law for the plaintiffs.
We have already spoken several times with Dr. Lutz, the presiding judge of the Munich Regional Court, and attended almost 10 court hearings in parallel proceedings with other plaintiffs who are not represented by us. Most of the lawsuits in Germany are pending at the Munich Regional Court I, currently about 130 lawsuits with a total of more than 250,000 truck claims.
The Regional Court issues many so-called evidentiary decisions. This is an expression of the fact that liability is considered to exist on the facts and the court seeks expert advice on the quantifying of the exact amount of damage. The Munich Regional Court I has appointed the two experts who will determine the amount of damage for the claims we represent.
These are Prof. Dr. Oliver Falck, ifo Institute, Munich, as coordinator and contact person for the court, and Dr. Johannes Koehnen. The experts have expertise in competition law and are, above all, independent: The ifo Institute is associated with the Ludwig-Maximilians-University of Munich, is about two-thirds publicly funded and is accordingly independent. This is important to know, as substantial economic interests are at focus.
Furthermore, the Federal Court of Justice has meanwhile ruled in a decision KZR 63/18 that it is appropriate to determine damages on the basis of studies by the EU. This has been summed up with the line: “15% [damages] on everything!” and is likely to shorten the proceedings considerably.
In the meantime, we have filed several lawsuits. These are all pending before the 37th Civil Chamber of the Munich I Regional Court with its plaintiff-friendly jurisdiction.
This concerns the jurisdiction as well as the application of the limitation period rules and in particular the coordinated progress of the proceedings with the request for the universal expert opinion.
Consequently, the prospects remain as strong as ever.
We will continue to report.