Cartel damages: cross-border actions for damages due to antitrust infringements

In the field of actions for damages claims due to antitrust infringements, Germany has led the way in recent years compared to other European countries. Most recently, the judgment handed down by Düsseldorf Higher Regional Court in the CDC proceedings regarding the cement cartel attracted attention from outside the German jurisdiction (see Juve reports of 18 February 2015 and 30 March 2015). Whilst the cement cartel only concerned the German market, cross-border cartels are increasingly becoming the focus of case law. In these proceedings, one question is becoming particularly relevant: before which court are companies that have suffered damage due to cartels able or obliged to assert their claims? The ECJ will have to decide on this question in the CDC proceedings relating to the hydrogen peroxide cartel later this year. In light of this, the opinion of the Advocate General published on 11 December 2014, which deals with the questions submitted by the Dortmund Regional Court for a preliminary ruling, was awaited with great interest. It is rightly expected that this opinion will have some influence on the ECJ’s decision.

The article “Territorial Jurisdiction in European Cross-Border Cartel Damages Cases – Consolidation Before one National Court” published in the International Civil Redress Bulletin of the ABA Section of Antitrust Law co-authored by Meike von Levetzow and Dr Kathrin Westermann takes a detailed look at the Advocate General’s considerations on the applicability of Article 6 (1) of the Brussels I Regulation in cartel damages proceedings from an English, Dutch and German point of view. A telephone seminar with the authors on this issue and other issues addressed in the opinion of the Advocate General (Article 5 (3) and Article 23 of the Brussels I Regulation) is also taking place on 28 May 2015 (registration here).

Overview: The issues discussed in the German part of the publication

In the hydrogen peroxide proceedings, following the fine decision of the European Commission, CDC has brought combined damages claims based on rights assigned by parties suffering losses against one German and five European companies. The plaintiff is basing the jurisdiction of the German court on Article 6 (1) of the Brussels I Regulation, according to which several defendants can be sued at the place where one of the companies is domiciled, in this case, the German company Evonik Degussa GmbH.

In this regard, the Advocate General held the opinion that Article 6 (1) of the Brussels I Regulation in general must be applicable to cartel damages claims against several cartel participants as jointly and severally liable parties because the European Commission had in fact only established a single uniform infringement against Article 101 of the TFEU. He also stated that the uniform hearing before one court was intended to prevent conflicting decisions, which could arise if the proceedings against the cartel participants were conducted separately before the relevant national courts and had to be decided according to the relevant national law. This opinion, however, does not take into account that in the hydrogen peroxide case the national law applicable to the various claims under German international private law will probably vary. This will confront the German judge with the complicated organisational task of identifying and applying the relevant regulations of the respective legal systems.

The Advocate General also argued that a withdrawal of the action against the “anchor defendant” at whose place of jurisdiction the cartel participants were sued, does not make any fundamental difference to the jurisdiction of the court seised. According to the Advocate General, the only exception to this would be a case in which the plaintiff only filed the action against several defendants for the purpose of denying one or several defendants the jurisdiction of the courts of their country of domicile. The reason for an opinion on this point becoming germane to the issue was that CDC had withdrawn the action against the anchor defendant – the only German company – after reaching a settlement with it, before the other defendants had even filed a defense to the action. The defendants maintained that the plaintiff had abused the law, deliberately delaying the conclusion of the settlement, for the purpose of being able to file the action before the Dortmund Regional Court. If the ECJ agrees with this opinion, it will be interesting to see in the next step whether and to what extent the Dortmund Regional Court imposes a secondary burden of proof on the plaintiff to show or to negative conduct constituting an abuse of the law.