Dutch Court accepts jurisdiction for damage claims of non-EU claimants and provides guidance on the interpretation of limitation periods
On 27 June 2018 the Dutch District Court of East Brabant rendered an interim judgment (ECLI:NL:RBOBR:2018:3170) on the limitation periods of damage claims initiated by a Turkish company Vestel Ticaret A.Ş. (Vestel) against various international companies which were members of the cathode ray tubes cartel (CRT Cartel). The Dutch Court accepted jurisdiction of the case as one of the defendants is located in the Netherlands (Koninlijke Philips Electronics NV (Philips)). It was concluded that the claim brought by Vestel was not time-barred according to Turkish law, which was deemed to be the applicable law by the Court. The damage claims resulted from the Commission Decision of 5 December 2012, where Philips and seven other participants had infringed article 101 of the TFEU and article 53 of the EEA Agreement by having participated in the CRT cartel. The addressees of the decision fixed prices, allocated market shares and restricted output. The damage proceedings were initiated on 26 November 2014. According to Turkish law, there is a subjective limitation period of one (article 60 TCO old) or two years (article 72 TCO new), depending on whether the new or old law of the Turkish Code of Obligations is applicable. There is also an objective limitation period of 10 years under both laws. The new law is applicable as from 1 July 2012. The claimants were arguing that the subjective limitation period starts from the actual knowledge of the damage and the identity of the liable person. Concretely, this would mean the day the Commission published its decision therefore the day of the press release which was on 5 December 2012. On the other hand, the defendants were of the opinion that Vestel should have been aware of the infringements before November 2012, meaning that the old law is applicable and that by November 2014, the claim is time-barred. The Court followed the claimant’s argumentation and also stated that the defendant failed to demonstrate Vestel’s relevant knowledge of the claim before the publication of the press release. Accordingly, the Court concluded that the two-year limitation period started to run on 5 December 2012 and that the new limitation period of two years was applicable. Regarding the application of the objective limitation period, the Court also followed the claimant’s reasoning and concluded that the objective limitation period starts to run from the moment the alleged cartel ended. This limitation period had not yet expired, as the cartel infringement terminated in November 2006. Consequently, the Court held that the damage claim is not time barred under Turkish law and is therefore admissible. It still remains to be seen how the Court is going to assess the affectedness of the cartel and the quantification and allocation of damage among others. However, this judgment confirms that non-EU companies have standing to bring damage actions for the breach of EU competition law and that Dutch courts are willing to apply and assess the respective national law, even if the respective jurisdiction lies outside the EU so that EU law principles are not directly applicable. by Yaël Rager and Till Schreiber
Clarifying the reasonableness test in the proposed guidelines of the European Commission on the passing-on of cartel overcharges
Virtually each dispute over claims for damages resulting from an infringement of competition law includes the question of how to deal with the fact that a direct purchaser from an infringer might have passed on all or part of the illegal overcharge to its own customers and thus, directly or indirectly, even down to the final consumer. The European Commission has therefore, in light of Article 16 of the EU Damages Directive on antitrust damages actions, invited views and comments on its Draft Guidelines for national courts on how to estimate the share of cartel overcharges passed on to indirect purchasers and final consumers by 4 October 2018. Passing-on defence In particular, the Draft Guidelines rely on the provision under the Damages Directive that the infringer shall invoke the passing-on of the overcharge as a defence against a claim for damages, by arguing that the claimant had reduced its actual loss by passing it on (Article 13). Otherwise, it might amount to unjust enrichment from ‘over-compensation’ of a claimant. This shall be avoided (Article 12). Besides, denying use of the passing-on defence could imply that the infringer would risk having to compensate the overcharge more than once. This would be the case if both the direct purchaser, who suffered from the initial price increase, and the indirect purchaser, to whom the overcharge was passed on (for the standing of the indirect purchaser, see Article 14), claim damages for the same illegal price increase. Such a ‘multiple liability’ of the infringer shall be avoided too (Article 15). Risk of an unlawful absence of liability However, the Draft Guidelines do not mention the case where the passing-on defence shall be used against the claimant, while no or very few purchasers downstream of the claimant bring a damages case, e.g. because the damage is too small and/or too difficult to prove. This especially concerns, but is not limited to, final consumers to whom the Draft Guidelines refer repeatedly. Having small and scattered damage only, and a long causation line to the infringement, it is typically not reasonable for final consumers to sue the infringer for such damages themselves. This scenario concerns any assessment of passing-on in antitrust damages cases, because, pursuant to Damages Directives Articles 12(1) and 15(1), an ‘absence of liability of the infringer’ must be avoided as well. Passing-on of scattered damages – a hot potato before the national courts There are many judgments on what may be called a ‘reasonableness test’ already, especially in those Member States with the most activities in private antitrust enforcement. Accordingly, the passing-on defence is inapplicable in cases where the infringer otherwise, unreasonably, would not have to fear any compensation claim, because the claimant passed on small and dispersed damages to a multitude of final consumers who typically have no interest in pursuing expensive legal actions for claiming those damages themselves. For this, see for example: In Germany, on the Rail Track Cartel, the Higher Regional Court of Munich, judgment of 8 March 2018 (at para. 81); the Regional Court of Frankfurt, judgment of 30 March 2016 (at C I 1 b dd (2)); the Regional Court of Hamburg, judgment of 1 September 2017 (at the end of para. 54), as well as, on the Trucks Cartel, the Regional Court of Dortmund in its judgment of 27 June 2018 (at paras. 169 to 173); In the Netherlands, the District Court of Gelderland in its judgment of 10 June 2015 (at paras. 2.28 to 2.29) on the Gas Insulated Switchgear Cartel; In the United Kingdom, the Competition Appeal Tribunal in its judgment of 14 July 2016 (at para. 484(4)/(5)) on anti-competitive interchange fee arrangements. Comment The Commission’s guidelines should take into account that the risk of an absence of liability is of particular practical relevance. In a case in which any potential claim becomes either so fragmented or else so impossible to prove that the end-result is that the defendant retains the overcharge in default of a successful claimant or group of claimants, there is obviously no need to protect the infringer against multiple compensation. As regards the argument related to the ‘unjust enrichment’ of the claimant, this is outweighed by the fact that those who violate competition law would retain the fruits of their illegality, if the claimant was barred from compensation by the passing-on defence and, as a matter of fact, none or just a fraction of the harmed purchasers downstream brought suit against them instead. Such an absence of effective liability contradicts the principle of full compensation and impedes any deterrent effect of private actions for antitrust damages. The effectiveness of the competition rules under Articles 101 and 102 TFEU would be substantially and hence unduly reduced. Under such circumstances, the passing-on defence must not be allowed. To avoid an absence of liability of the cartelists, there is no other solution, provided that an effective mechanism of collective redress is not available, or not used for whatever reason, in the case at hand. Conclusions The Draft Guidelines describe the legal framework applicable to passing-on in chapter 2. This seems to be the right place to further clarify in the final version of the guidelines that: Firstly, the passing-on defence cannot be invoked against a claimant to the extent that otherwise any claims downstream of that claimant are either so fragmented or else so impossible to prove that, if successful plaintiffs or group of plaintiffs on that level do not exist, the end-result would be an ‘absence of liability of the infringer’ (Articles 12(1), 15(1) Damages Directive) or a similar, significant, reduction of its liability. This would be contrary to the EU legal principles of both full compensation and effectiveness of EU competition law; Secondly, for the passing-on defence against a claimant to succeed the infringer shall address the risk of an absence or significant reduction of liability, by demonstrating the existence of (sufficiently enough) other plaintiffs, or groups of plaintiffs, asking for damages on the downstream level, in order to ensure the principle of full compensation for the harm caused by the infringement of competition law on the different levels of
TenneT vs ABB: The case and discussion about the passing-on defence continues
The discussion on the admissibility of the passing-on defence in the dispute between TenneT and ABB continued with the judgment of the Court of Appeal Arnhem-Leeuwarden (Gelderland) of 29 May 2018 (ECLI:NL:GHARL:2018:4876). The procedure concerns a follow-on damages action of the Dutch state-owned grid operator TenneT against ABB – and in a different procedure against Alstom – in the worldwide gas-insulated switchgear cartel which caused TenneT to suffer damages. Both cartel participants invoked the passing-on defence in the individual proceedings. A cartelist can rely on this defence under certain conditions, provided the cartelist can demonstrate that the direct purchaser has passed on the overcharge to its customers. To the extent the reliance on the passing-on defence is successful, the purchaser is not entitled to compensation (excluding damages relating to lost profits due to quantity effects) because the overcharge is considered to have been suffered on the downstream level of indirect purchasers. After several judgments of different courts in these TenneT-procedures with regard to the admissibility of the passing-on defence, amongst others by the Netherlands Supreme Court which confirmed the general availability of the passing-on defence (either as a factor affecting the calculation of the damages or under the doctrine of voordeelstoerekening, i.e. the principles on the setting-off under certain conditions of benefits enjoyed by the claimant). The Gelderland District Court ruled in 2017 that the passing-on defence in this case failed, because the end-users would most probably not start a successful procedure themselves, which made it unreasonable, according to the court, to deduct the amount passed on to the consumers from the compensation claimed by TenneT. In addition, the end-users will also benefit from the compensation through TenneT since it is state property. The court ordered ABB to pay damages to TenneT of €23.1 million to be increased by the statutory interest. ABB filed a (further) appeal to the Court of Appeal and argued that the District Court Gelderland incorrectly calculated the overcharge and incorrectly rejected the passing-on defence invoked. Although the result should be awaited, since the Court of Appeal did not rule on the merits of the case, the interim judgment of the Court of Appeal of 29 May can be seen as success for ABB. In the first place, the Court of Appeal confirmed the Supreme Court’s judgment with regard to the basis of the passing-on defence and the applicability thereof in the case at hand. Moreover, the Court of Appeal appointed three independent economic experts to provide their views on the calculation and total amount of the overcharge sustained by TenneT and whether and to what extent the overcharge has potentially been passed-on. While it is usual for the court to appoint one economic expert, the court decided to appoint additional experts because TenneT stated that the expert should have an economic background while ABB stated the expert should have an accounting background. Recognising the complexity of the case and its financial importance, the court decided to appoint three experts, one with an economic background, one with an accounting background and a third one to avoid a deadlock. Further developments will be subject of a subsequent blog post. by Annalies Outhuijse and Jaap Waverijn
The EFTA Court clarifies the application of limitation periods to antitrust claims resulting from EEA competition infringement
The EFTA Court with its judgment of 17 September 2018 (reference no. Case E-10/17 – Nye Kystlink AS and Color Group AS and Color Line AS) has confirmed that lawsuits against antitrust offenders can face deadline restrictions, but this should not make them “impossible or excessively difficult”. The EFTA Court stated that the compliance of national rules on limitations with the principle of effectiveness has to be guaranteed and assessed on a case by case basis. The application of such limitation periods shall not make it impossible or excessively difficult to bring an action for damages. In December 2011, the EFTA Surveillance Authority (“ESA”) found that the provider of ferry services Color Line (the defendant) had infringed Articles 53 and 54 EEA by their exclusivity agreement with the Municipality of Strömstad between 1994 and 2005. Later, Nye Kystlink AS (the plaintiff) brought an action before Norwegian courts against the defendant claiming damages. The Oslo District Court dismissed the action because the three-year limitation period (cf. Section 9(1) of the Limitation Act) had expired, rendering the claim time-barred. The plaintiff decided to appeal that judgment to the Borgarting Court of Appeal which referred several questions on the interpretation and application of national limitation periods to the EFTA Court. Three questions referred to the EFTA Court The first question referred to the EFTA Court was whether under the principle of equivalence the extended one-year limitation, applicable to damages resulting from criminal offences should be applied to damages caused by infringements of the EEA antitrust provisions. The EFTA Court stated that this would only be the case if such a rule would have a similar purpose, cause of action and essential characteristics. The rules might only be relied upon if the infringement of national/EEA competition law would amount to a criminal offence under national law. The second and third questions referred to the EFTA Court concerned whether under the principles of equivalence and effectiveness the three-year subjective limitation period under Norwegian law could expire prior to the adoption of the decision by the “ESA”. Concerning the duration and starting point of the limitation period, the EFTA Court stated that in order to comply with the principle of effectiveness and to ensure legal certainty, the limitation period must be fixed in advance. Regarding the starting point of the limitation period, the Court argued that it starts running when the injured party is in possession “of such information that, despite uncertainty about the outcome of a court case, he has reasonable grounds for having the question of liability assessed by the courts”. Even if this assessment is discretionary in nature and requires a case by case analysis, in most situations, it might be necessary for claimants to wait for the result of the administrative investigations. In addition to the duration and starting point of the limitation period, the Court also looked at potential grounds for the suspension or interruption of the limitation period. As long as the limitation period is not overly short and can be interrupted or suspended, it should not be contrary to the principle of effectiveness. It is for national courts to ensure that such options are available in practice. Conclusion This judgment confirms the right to claim for damages in case of an infringement of EEA competition law and clarifies the application of the limitation periods in damage actions. A limitation period of three years as of the subjective knowledge of the relevant facts is acceptable as long as the application of such a limitation period does not make it impossible or excessively difficult to bring an action for damages for an infringement of EEA competition rules. by Yaël Rager and Till Schreiber
The compatibility of Irish rules on champerty and maintenance with the EU damages directive
On 17 February 2017, EU Directive 2014/104 (the “Directive”) was transposed into Irish law by the European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017 (the “Implementation Act”). As widely acknowledged, the implementation of the Directive aims to facilitate the enforcement of claims for damages resulting from infringements of competition law before the courts of EU Member States. While there has been a plethora of commentaries on the implementation of the Directive from an Irish perspective, little or no discussion has followed on the implication of the definitions of “action for damages” and the “right to full compensation” under the Directive / the Implementation Act in relation to Irish rules on champerty and maintenance. Pursuant to Article 2(1) of the Implementation Act: “action for damages” means an action under law by which a claim for damages is brought before a court by an alleged injured party, or by someone acting on behalf of one or more alleged injured parties where law provides for that possibility, or by a person that succeeded in the right of the alleged injured party, including the person that acquired the claim”. Assignment Model The insertion of the phrase “including the person that acquired the claim” appears to recognise in the Irish Statutes the possibility of transferring a tortious claim for damages to another person, at least in relation to competition law infringements. The process of selling and transferring claims for damages to another person is commonplace in many EU Member States and the validity of these assignments has been confirmed in the courts for example of Austria, Finland, Germany and the Netherlands where claims for compensation in relation to cartels are increasingly enforced under the assignment model where, in general, several damaged companies sell and transfer their damages claims to a specialised entity which then enforces the bundled claims in its own name and at its own risk in one legal action. The assignment model provides many advantages including cost reduction, economies of scale, collection of evidence, and separation of claims enforcement from ongoing business relations. From a company victim’s perspective, it results in a full outsourcing of the damage quantification and claims enforcement, as well as covering the funding of the overall process, while at the same time increasing chances to obtain fair compensation. The model takes account of the factual, legal and economic complexities of antitrust damage claims. It also allows the pursuit of claims which otherwise would be forgone, as many victims are deterred from enforcing such antitrust claims on their own. In addition, the Court of Justice of the European Union in the case CDC Hydrogen Peroxide acknowledged that persons having acquired antitrust claims are entitled to file a damage action. Assignment Model and Litigation Funding in Ireland The assignment model is often seen as a practical alternative to third-party litigation funding. The issue of litigation funding has been considered many times over the years in the Irish courts. In the High Court case Thema International, Clarke J observed that: “In Ireland it is unlawful for a party without an interest (or some other legitimate concern including charity) to fund the litigation of another at all and, in particular, it is unlawful to fund litigation in return for a share of the proceeds.” Most recently in May 2017, the Irish Supreme Court ruled in Persona Digital Telephony Ltd & another v The Minister for Public Enterprise & others that litigation funding is incompatible with the current laws regarding champerty and maintenance. That case concerned allegations of corruption against the State, and much attention was drawn to Ireland’s ancient laws in relation to champerty and maintenance which stem from the Maintenance and Embracery Act 1634. In his judgment, Clark J stated that if there was a finding that the constitutional right of access to justice was being impaired then that could lead to the courts “altering the parameters of the law of champerty” at least in some cases and some circumstances. The Supreme Court was not required to consider this issue as the case was not a constitutional challenge against the rules on champerty and maintenance. However, the Court reflected that legitimate arguments can be made in relation to the constitutional right to access justice and the possible implications concerning the constitutionality of the champerty and maintenance laws in a modern environment. As a final observation, Clarke J noted that if a situation arose where there was a finding of a breach of the constitutional right to access justice and there had been no legislative action, then it may fall upon the courts to rectify the problem. As the acquisition of claims in Ireland, at least in relation to infringements of competition law, appear to be valid with the entry into force of the Directive, it will be interesting to see if the assignment model is tested in Irish courts without any further legislation concerning the champerty and maintenance doctrine. For example, with the implementation of the Directive it could potentially be foreseen that a third party or litigation funder would have a legitimate interest in the outcome of a proceedings if it acquires several damages claims itself and bundles them into one action for compensation. The third party or funder could be viewed as having a legitimate interest given that it would own the claims itself and alone be liable for procedural cost orders. The rules on champerty and maintenance might be irrelevant as the third party or litigation funder would fund its own action. Thus, the question is whether a specialised entity operating with the assignment model and relying on third-party litigation funding, like those operating in other Member States, would be able to bring an antitrust damages case in Ireland under the current laws. In this respect, Article 4 of the Directive should be duly taken account of: “In accordance with the principle of effectiveness, Member States shall ensure that all national rules and procedures relating to the exercise of claims for damages are designed and applied in such a way that they do not render practically impossible or excessively difficult the
EU proposes new whistleblower safeguards
On 23 April 2018, the European Commission announced its intention to implement new EU-wide standards to safeguard whistleblowers. The Commission’s proposals aim to strengthen existing laws by increasing the protection of whistleblowers who report violations of EU rules, including breaches of competition law. According to the Commission the proposed reforms will establish “safe channels” which whistle-blowers can use without fear of losing their job or being demoted. These safe channels will be implemented both within an organisation and in communication with public authorities. This will most likely require additional training for public authorities on how communication with whistle-blowers should be conducted. The proposed directive consists of a three-tier reporting system, (i) internal reporting channels, (ii) reporting to competent authorities (if internal channels do not work or are not appropriate), and (iii) public / media reporting (if no action is taken after exhausting the first two channels). There will be an obligation for companies and authorities to respond to the reports made by whistleblowers within a period of three months and whistle-blowers will be exempt from liability for disclosing the information. Remedies are also foreseen to prevent possible retaliation against whistle-blowers and in such cases the burden of proof will be reversed meaning the organisation or person would have to prove they were not acting in retaliation against the whistle-blower. The proposal is particularly timely given the recent scandals for example concerning Volkswagen and Facebook. Věra Jourová, the Commissioner for Justice, Consumers and Gender Equality has labelled the proposed directive a “game changer”. From a competition law perspective, the proposal is an interesting development as it may encourage those with knowledge of the existence of cartels, to come forward when otherwise they would not. Only time will tell if this results in an increase in public enforcement as a result. Nevertheless, any improvement in the protection of whistle-blowers who report wrong doing in the public interest should be seen in a positive light. by Pádraic Burke and Martin Seegers
German Federal Court of Justice hands down landmark judgment in Cement Cartel Case
In 2005, Germany implemented legislation determining the suspension of limitation periods for damage claims during the investigation of a competition authority. However, since the adoption of the new provision it has been unclear whether the law applies on damage claims which arose before the entry into force of the new suspension provision (1 July 2005), but which have not yet become time-barred at that time. As a result, there have been conflicting rulings from German courts. The District Court in Mannheim and the Higher Regional Court in Karlsruhe took the view that the law did not apply on such claims, while the District Courts in Berlin, Hannover, and Dortmund in addition to the Higher Regional Courts in Düsseldorf, Munich and Erfurt held an opposing interpretation and considered that the provision regarding limitation periods applied to all claims as long as they were not time barred on 1 July 2005. In a landmark judgment handed down on 12 June 2018 the German Federal Court of Justice (‘Bundesgerichtshof’, BGH) provided long awaited legal certainty not only in relation to limitation periods but also as regards the right to obtain interest as of the date the damage occurred. The judgment concerns an action for damages relating to the German Cement Cartel. However, the judgment has much wider implications and is relevant for damage claims relating to other infringements such as the German Sugar Cartel and the European Trucks Cartel. The judgment confirms the views of CDC which intervened as third party (‘Streithelfer’) in the proceedings. The action was brought by Kemmler Beton GmbH (‘Kemmler’), a trader of building materials, against HeidelbergCement AG (‘Heidelberg’). Kemmler is claiming damages due to prices overcharged for cement in the years 1993 to 2002. During this period Heidelberg had entered into territorial and quota agreements with other cement manufacturers in violation of antitrust law. A fine was therefore imposed by the Federal Cartel Office in 2003. The fine decision became final in 2013 by a decision of the Federal Court of Justice (BGH, decision of 26 February 2013 – KRB 20/12). In relation to limitation periods the Federal Court of Justice held that the provision of Section 33 (5) of the German Act on Restraints of Competition (‘ARC’) (now Section 33h (6) ARC) also applies to claims for damages based on cartel violations committed prior to the entry into force of the provision on 1 July 2005 and not yet time-barred at that time. According to this provision the limitation period for a claim for damages shall be suspended if the Federal Cartel Office or the European Commission initiate proceedings against the infringers. The judgment of the Federal Court of Justice confirms the view of the majority of Higher Regional Courts in Germany, and overrules the interpretation of the Higher Regional Court of Karlsruhe. Based on the interpretation of the Higher Regional Court of Karlsruhe, the Regional Court of Mannheim had dismissed the damage action by CDC against Heidelberg as time barred. The CDC action is currently pending before the Higher Regional Court of Karlsruhe which is expected to schedule an oral hearing now that the Federal Court of Justice has ruled on the applicable limitation provisions. At the time of filing in September 2015, the value of the claim amounted to more than €138 million in damages including interest. Another important aspect of the judgment concerns the right to obtain interest on the damage caused by a competition law infringement. The Federal Court of Justice held that prior to the entry into force of § 33 (3) ARC (now § 33a (4) ARC) the claimant has a right to obtain interest of 4% on the damage amount as of the date the damage occurred. by Till Schreiber and Martin Seegers
First Spanish Judgments in trucks cartel follow-on actions
The trucks cartel sanctioned by the European Commission in July 2016 has provoked a flood of individual claims all over Spain. They were filed by all types of transport and logistics companies against the six sanctioned manufacturers, their Spanish subsidiaries and even their financial services providers. Apart from several decisions on jurisdiction and access to evidence, the Commercial Courts in Murcia and Zaragoza have already delivered three Judgments on the merits and one Judgment in absentia. Two claims have been dismissed (one in Murcia and one in Zaragoza) and two claims have been upheld (Murcia). Background of all four cases On 19 July 2016, the European Commission fined manufacturers of medium and heavy-duty trucks over € 2.93 billion for their participation in a price-fixing trucks cartel covering the entire European Economic Area and lasting 14 years from 1997 to 2011 (Case COMP/39824 – Trucks). The Commission sanctioned MAN, VOLVO/RENAULT, DAIMLER, IVECO and DAF. On 27 September 2017, the Commission imposed a subsequent fine of € 880 million against SCANIA. According to the Commission, the trucks cartel consisted of collusive arrangements on pricing and gross price increases in the EEA for medium and heavy trucks, and the timing and the passing-on of costs for the introduction of emission technologies for medium and heavy trucks, required by EURO III to VI standards. The cartel has illegally and artificially increased the prices of trucks throughout Europe. Purchasers of trucks have been overcharged by the truck manufacturers. Following this decision, four claimants filed actions before Spanish Commercial Courts asking for compensation for the damages caused by the cartel. The four Judgments contain interesting details about the case, the liability of the cartel members and the proof of the damage. Two claims have been completely dismissed. Yet one claim has been partially upheld, and another one has been completely upheld. In the following, the main aspects of each Judgment are discussed. 1. Commercial Court of Murcia, Judgment of 26 September 2018 (a) Facts and procedural questions The claimant, a company based in Murcia filed a claim against VOLVO GROUP ESPAÑA S.A. asking for a compensation of €14,795 based on a lease agreement concerning one truck. Defendant VOLVO GROUP ESPAÑA did not appear before the court within the foreseen deadline. (b) Liability and passive legitimation The Court confirmed the liability of the defendant based on the decision of the European Commission. The Judgment does not question the liability of VOLVO GROUP ESPAÑA S.A. as a subsidiary, since it simply refers to the participation of the defendant in the cartel sanctioned by the Commission. The Court confirms that it is not necessary to prove the effects of the conduct to consider that an agreement is anticompetitive. It also considers that the decision of the Commission has a binding effect on the damages action, but only in relation to the conduct itself and not regarding its effects or potential damage. Notwithstanding, the Judgment does not condemn the defendant to pay any type of compensation for damages since the expert report of the claimant was filed after the deadlines foreseen by the court and the procedural rules. The Judgment does not analyse the expert report and dismisses the claim concerning compensation. It is important to note that the defendant did not file its response in time and thus the Judgment is in absentia. Consequently, the discussion on the merits was limited. 2. Commercial Court of Murcia Judgment of 15 October 2018 The Commercial Court of Murcia upheld one of the first damage actions filed against VOLVO GROUP ESPAÑA S.A. The latter must pay a compensation of €128,756 to the claimant, a lessee of five Renault trucks. It is important to highlight that the defendant alleged that it was not able to answer the claim in time due to an incorrect notification of the claim. (a) Facts The Court analyses the damages caused to an individual that leased five Renault trucks in October 2012. This person filed the claim against Volvo Group España S.A. as the legal successor of Renault Trucks España S.L. The claimant asked for the declaration of liability of Volvo Group España S.A. and initially for compensation of €148,680 for the damages caused due to the lease of five Renault Magnum 520.1ST trucks. The compensation request was reduced to €128,756 after filing the expert report which corrected the initial amount. Defendant Volvo Group España S.A. did not answer the claim within the foreseen time and only appeared before the court in the preliminary hearing and in the oral hearing. The Court did not accept the statement of defence, and considered that the damages suffered by the claimant had been proven up to an amount of €128,756. (b) Defendant capacity and liability of Volvo Group España S.A. Volvo Group España S.A. is not an addressee of the decision of the Commission. Notwithstanding, the Court considers that the company can be defendant in the proceedings since it is the legal successor of Renault Trucks España S.L. The Court does not analyse the liability of Volvo Group España S.A. in detail but as part of the Volvo Group. It does not distinguish whether they are addressees of the decision or not. It declares the liability of Volvo/Renault concluding that the defendant Volvo Group España S.A. also breached EU competition law. Notably, the commercial court of Murcia does not discuss in detail if the defendant being part of the Volvo Group can be held liable or not, and just declares that the defendant also breached EU competition Law. (c) Estimation of the damage The claimant filed an expert report with an estimate of the damage. Taking into account that the defendant did not submit any report since it missed the deadline for the response the judge accepts the conclusions of the report and evaluates them very briefly. The judge considers that the report does not contain any findings that could be regarded as illogic or arbitrary. The report estimates the damage as follows: Overcharge: The expert refers to the study Cartel Overcharges