ECJ judgment on DB Schenker sets back antitrust civil claims

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Customers of companies that have been found guilty of cartel behaviour by the European Commission are increasingly unlikely to be able to use the EC judgment as the basis for which to launch civil claims.

That is the broad conclusion following a recent judgment from the European Court of Justice, the EU’s highest court, which dismissed an application for intervention from freight forwarder DB Schenker into the series of appeals from airlines against the anti-cartel judgments handed down by the European Commission in 2010, which resulted in a cumulative fine of €799 million.

The German logistics company had been hoping that its application of intervention would give it access to a range of evidence that the EC had compiled when it was investigating claims that a group of airlines had colluded to fix the rate of fuel surcharges  levied on forwarders.

Access to that information could have given Schenker crucial evidence with which to build a civil case, in a possible quest to receive damages from the 11 airlines involved in the price-fixing case – not only were fuel surcharges found to have been fixed, but security charges too, as well as an agreement on not paying commission on the surcharges to their customers, the forwarders.

According to Holman Fenwick Willan’s Eliza Petritsi, European courts have long been known for their reluctance to allow EC judgments, be they anti-cartel, state aid or trade rulings, to be used as the basis on which civil claims for damages may be launched.

“The definitive judgement by the highest court confirms and further clarifies under what circumstances an application for intervention may be admissible before the European Court,” she told The Loadstar.

“Overall and traditionally, the European Courts have followed a narrow approach and have been extremely restrictive regarding allowing for any sorts of interventions. The strict approach is even stronger and more evident in the present case, where the intervener may have been perceived as engaging in pre-empting actions and/or seeking to facilitate its independent action for private damages against the cartel members.

“An action for annulment is not to be used as a platform to gather evidence with the view to build a damages claim.”

She agreed that this had implications for the victims of other anti-cartel cases, such as shippers who were customers of freight forwarders found guilty of price-fixing in the recent “Gardening Club” case; or for customers of container shipping lines currently under investigation for cartel behaviour, should they be found guilty (the status of the container shipping case is that it is officially still being investigated, although the buzzing Brussels rumour-mill suggests that EC investigators are “sitting on the evidence”).

“To successfully intervene in a case before the European Courts, one needs to establish a direct and existing interest in the outcome of the case. The threshold is not straightforward. It is restrictively interpreted by the Courts – often unnecessarily restrictively – but it is clear from this case, that being a customer of the cartel may not be sufficient on its own to establish an interest. Of course, every situation is case-specific, but the thresholds are often hard to meet, even harder when the real intention and aim for the intervention lies elsewhere.”

This position could prove problematic for shippers and forwarders who feel they are entitled to damages, said Ms Petritsi, as building a civil case can be very difficult “because you need access to important information and data”.

“In general the courts do not like to open that avenue to civil action, partly because the workload increases so much and there can be a lot of duplication.”

She emphasised that each case was fact-specific but added: “This judgment confirms the limitations of customers seeking to build these cases. Sometimes the intervention is justified, sometimes it is not. It can be frustrating.”