On 18 February 2015, the German Court of Appeal (the Oberlandesgericht Düsseldorf) confirmed that the assignment of claims to a claim vehicle in a follow-on action for damages in the cement cartel (COMP/C.39181) were void.
In December 2013, the Landgericht Düsseldorf had decided that a subsidiary of claim vehicle Cartel Damage Claims SA ("CDC") violated German public morals ("gute Sitten") as it was foreseeable at the time the damage claims were assigned that the claim vehicle would not be able to meet a possible future litigation cost order (see our January 2014 newsletter article). The whole risk of litigation was therefore unjustifiably shifted to the defendants. The assignments were for this reason void. CDC unsuccessfully appealed this judgment before the Oberlandesgericht Düsseldorf.
The judgment by the Oberlandesgericht Düsseldorf (Case Az. VI U 3/14) was given orally and the reasoning of the Court is not available yet. According to verbal announcement by the Court, CDC was not granted the right to file a further appeal to Germany's Supreme Court (the Bundesgerichtshof). However, CDC is considering requesting leave for a further appeal from the Bundesgerichtshof.
This is a leading case in the EU regarding the validity of assignments of cartel damage claims to claim vehicles. The question of the validity of assignments to claim vehicles is at issue in several proceedings before courts within the EU. One of them is the paraffin-wax case in the Netherlands, in which the District Court of The Hague recently issued a judgment rejecting the argument that assignments of damage claims to another subsidiary of CDC were void under German law (see our January 2015 newsletter article). Although the judgment by the Oberlandesgericht Düsseldorf deals with German law, it may also have an impact on the discussions concerning the validity of assignments of cartel damage claims under the law of other EU countries.