In a landmark ruling, the Court of Justice of the European Union (CJEU) has sets limits for national courts to estimate damages in so-called follow-on cartel damage claims.
The preliminary reference which gave rise to the ruling originated from a Spanish proceeding in relation to the so-called trucks cartel. Spanish first and second instance courts have proven in the last couple of years as a particularly claimant-friendly forum for cartel damages claims. Claimants before Spanish courts could be almost certain that damages of a certain percentage of the purchase price will be estimated, even if a clearly deficient expert report is being provided and no other evidentiary effort to prove the amount of harm is made. The CJEU ruling issued makes clear that such an approach of estimating damages “out of the blue” is not in line with EU law.
In its judgment, the CJEU followed all along the line the arguments that were made by Cuatrecasas and Gleiss Lutz on behalf of Daimler. The ruling provides two important clarifications:
The CJEU decided that it follows from Article 17(1) of the so-called Damages Directive (Directive 2014/104/EU) that national courts may only estimate damages if first, the existence of that damage has been established and, second, it is practically impossible or excessively difficult to quantify it precisely. The Court emphasizes that the Damages Directive has provided claimants with far-reaching instruments which re-balance the power between the alleged victims of a cartel infringement and the cartelist. In that respect, the CJEU stresses the key role of Article 5(1) Damages Directive which remedies the information asymmetry between the parties by allowing alleged cartel victims to request the production of evidence. National courts are only allowed to estimate damages if the claimant has made use of this possibility. If the practical impossibility of assessing the damage results from the inaction of the claimant, it is not for the national court to substitute itself for the claimant or to make up for its deficiencies by estimating damages. The Court’s clarifications on the limits for national courts to estimate harm will have a major impact on follow-on cartel damage claims in and also outside of Spain.
In addition, the CJEU clarified that a rule of national civil procedure under which the claimant bears his own costs and half of the common costs when the claim has been partially dismissed is compatible with Article 101 TFEU and the EU Damages Directive. In particular, the right to full compensation and the principle of effectiveness do not require that a claimant which is awarded a lower amount of damage than the amount claimed does not bear any costs at all. Given that many EU countries have similar regimes on shared distribution of court costs, the CJEU’s clarifications in that respect are also relevant for a multitude of other jurisdictions.
The defendant, Daimler AG, was represented in Luxembourg by a joint team of Gleiss Lutz and Cuatrecasas lawyers. Gleiss Lutz is representing Daimler as coordinating lead counsel in the trucks cartel litigation across Europe. Cuatrecasas is acting as its local counsel for Spain and Portugal. The Cuatrecasas team consisted of partners María Perez, Esther de Felix Parrondo and Jose María Macías Castaño, together with senior associate María Lopez Ridruejo. The Gleiss Lutz team acting in this case consisted of partner Dr Christian von Köckritz and counsel Dr Harald Weiß (Brussels), and partner Dr Ulrich Denzel and counsel Dr Carsten Klöppner (Stuttgart).