Introduction

Daimler, MAN, Volvo/Renault, DAF, Iveco and Scania are facing billion-dollar damages claims from carriers for illegal price fixing. To date, more than 7,000 transport companies from 26 countries have filed over 300 claims in excess of €1 billion in the German courts. Further, in 2016 and 2017, the European Commission imposed a record fine of more than €3.7 billion on four truck manufacturers. However, the spillover effects on the transport sector remain unclear.

Original EU investigation

The European Commission considered it proven that, between 1997 and 2011, major truck manufacturers:

  • exchanged information regarding prices, price increases and the timing of the introduction of new emission technology; and
  • passed on associated costs to customers.

The commission considered this a violation of Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement.

The truck manufacturers maintained, among other things, that any associated costs had been passed on to carriers' customers (eg, by shippers and consignees demanding excessive freight costs).

Dortmund Regional Court decision

The Dortmund Regional Court recently dealt with this matter in detail. The court rejected the manufacturer's argument that the associated costs had been passed on to the carriers' customers. Although the existing price structure in the markets for acquiring trucks and freight forwarding is characterised by supply and demand, the court ruled that the associated costs had not been fully compensated by the carrier's customers, even if the carrier had passed any surcharge entirely to its customers.

Essentially, the court considered the carriers' customers to be neither competitors nor market participants in the sense of trading partners or other demanders (ie, carriers are final consumers, as the sales chain ends with them). Therefore, forwarding customers do not represent a further distribution stage in the truck transport market.

Comment

If the Federal Supreme Court upholds this verdict, customers may not have a claim for damages against their carriers, even though they might have had to pay excessive freight for years. The slightly bizarre result would be that carriers in the truck transport market would have an additional €1 billion at their disposal, despite their customers having already paid the increased cartel prices.

Further court rulings may transfer the negative impact of the European truck cartel to other affected parties such as shippers, consignees and carriers operating in other transport markets (eg, railroad or inland waterways).

For further information on this topic please contact Marco G Remiorz or Felix Goebel at Arnecke Sibeth Dabelstein by telephone (+49 40 31 779 70) or email (rm. remiorz@da-pa.com or f.goebel@asd-law.com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.

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