Introduction
Facts
Decision
Comment
On 2 February 2022, the General Court of the European Union (GC) dismissed Scania's appeal(1) and upheld the €880.5 million fine imposed by the European Commission (EC) for Scania's participation in a truck cartel. With its decision, the GC clarified:
- the legality of a "hybrid" procedure, combining the settlement procedure and the ordinary administrative procedure in cartel cases; and
- the concept of a "single and continuous infringement".
The EC's antitrust investigations regarding the truck cartel started in 2010 with an immunity application submitted by MAN. In January 2011, the EC carried out dawn raids, and in November 2014, the EC sent a statement of objections to all truck producers involved.
In July 2016, the truck manufacturers Daimler, MAN, Iveco, DAF and Volvo/Renault acknowledged their involvement and agreed to settle the case.(2) Scania decided to withdraw from that settlement procedure and opted to fight instead, rejecting the settlement. In its settlement decision of July 2016, the EC imposed a record fine of €2.93 billion on Daimler, Iveco, DAF and Volvo/Renault. At the time, this was the highest fine ever imposed by European competition regulators. MAN received full immunity for revealing the existence of the cartel, thereby avoiding a fine of approximately €1.2 billion under the EC's 2006 leniency notice.
In September 2017, 14 months after the settlement with the other cartelists, the EC imposed a fine of €880.5 million on Scania AB, Scania CV AB and Scania Deutschland GmbH (Scania), after Scania's refusal to settle the case.(3) Although MAN and Scania both belong to the Volkswagen Group, they followed a different approach at the time. However, in September 2017, the EC found that Scania had also broken EU competition rules, as it had colluded for 14 years, from January 1997 to January 2011, with the other truck manufacturers (Daimler, MAN, Iveco, DAF and Volvo/Renault) on truck pricing and on passing on the costs of new technologies to meet stricter emission rules. Scania appealed that decision.
In its 2 February 2022 judgment,(4) the GC upheld the €880 million cartel fine imposed on Volkswagen's subsidiary Scania for involvement in the truck cartel and dismissed Scania's complaint. The Court held that the EC had neither violated the presumption of innocence nor committed any other errors claimed by Scania. The Court decided that the conduct of "hybrid" proceedings, combining settlement proceedings and ordinary administrative proceedings in antitrust cases, did not in itself lead to a violation of the principle of presumption of innocence, the rights of the defence or the duty of impartiality. The EC had not violated these principles, even in the circumstances of the present case.
The GC also made clarifications regarding the concept of a "single and continuous infringement". Such a finding does not necessarily require proof of several infringements, each of which falls under article 101 of the Treaty on the Functioning of the European Union, but rather proof that various acts found fit into an overall plan to achieve a single anti-competitive objective. The company said it would not comment on the ruling until it had fully considered it.
First, the judgment from February 2022 is an important decision and certainly welcomed by many claimants fighting before national courts to collect damages. An appeal may be brought before the European Court of Justice against the GC's decision within two months and 10 days of notification of the decision. Such an appeal must be limited to points of law only. However, it is unlikely that an appeal will turn the tide.
Importantly, the decision concerning Scania is not yet final, which means that older claims for damages against Scania are not yet time-barred due to the ongoing suspension. Under article 10(4) of the EU Damages Directive:(5)
Member States shall ensure that a limitation period is suspended or, depending on national law, interrupted, if a competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates. The suspension shall end at the earliest one year after the infringement decision has become final or after the proceedings are otherwise terminated.
If the ruling now becomes final or is upheld in the next instance, which is likely, Scania will also have to assume joint and several liability for the other cartel participants. In such a scenario, the injured parties will still be able to assert their claims for damages against Scania for some time, as even older claims against Scania are not yet time-barred.
For further information on this topic please contact Sebastian Jungermann at Arnecke Sibeth Dabelstein by telephone (+49 69 979885 465) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnotes
(1) T-799/17.
(2) AT.39824 – Trucks / Settlement.
(3) AT.39824 – Trucks / Scania.
(4) T-799/17.