European Network partners Cuatrecasas and Gleiss Lutz
have jointly advised Daimler in a dispute over follow-on damages before the Court of Justice of the European Union (CJEU). On February 16, the CJEU issued a landmark judgment setting limits for national courts to estimate damages in so-called follow-on cartel damage claims.
The pretrial issues that gave rise to this judgment were referred to the CJEU as part of a Spanish proceeding for a damages claim against Daimler in relation to the so-called truck cartel. Spanish first and second instance courts have been particularly receptive in the last few years to claimants of cartel damages claims. Claimants before Spanish courts could be almost certain that damages of a certain percentage of the purchase price would be estimated, even if a clearly deficient expert report was provided and no other evidence to prove the amount of harm was shown. The CJEU judgment clearly establishes that this approach to estimating damages “out of nowhere” is not in line with EU law.
In its judgment, the CJEU follows the arguments made by Cuatrecasas and Gleiss Lutz on behalf of Daimler. The judgment provides two important clarifications:
1. The CJEU states that a rule of national civil procedure—under which both parties bear their own costs and half of the common costs when the claim has been partially dismissed—is compatible with Article 101 TFEU and the so-called EU Damages Directive. In particular, the right to full compensation and the principle of effectiveness do not mean that a claimant who is awarded a lower amount of damages than the amount claimed does not bear any costs at all, which is considered reasonable. Given that many EU countries have similar regimes for the shared distribution of court costs, the CJEU’s clarifications in that respect are also relevant for a multitude of other jurisdictions.
2. The CJEU also clarifies that under Article 17.1 of the Damages Directive (Directive 2014/104/UE), national courts may only estimate damages if first, the existence of damages has been established and, second, it is practically impossible or excessively difficult to quantify it precisely. The Court emphasizes that the Damages Directive provides claimants with powerful tools for re-balancing the power between the alleged victims of a cartel infringement and the cartelist. In that respect, the CJEU underscores the key importance of Article 5.1 Damages Directive, which corrects the information asymmetry between the parties by allowing alleged cartel victims to request the production of evidence. If the practical impossibility of assessing the damage results from the inaction of the claimant, the national court cannot itself substitute the claimant nor make up for its deficiencies by estimating damages. The Court’s clarifications on the limits for national courts to estimate damages will have a major impact on follow-on cartel damage claims in and also outside of Spain.
Daimler was represented in Luxembourg by a joint team of Cuatrecasas and Gleiss Lutz lawyers. Cuatrecasas acted as local counsel of Daimler in Spain and Portugal, and Gleiss Lutz represented Daimler as coordinating leading counsel in the truck cartel litigation across Europe. The Cuatrecasas team consisted of María Pérez Carrillo
, Esther de Félix
, María López Ridruejo
and José Mª Macías. The Gleiss Lutz consisted of Dr. Christian von Köckritz and Dr. Harald Weiß.