Trucks cartel: both “opt-in” and “opt-out” damages claims to be considered by the Competition Appeal Tribunal

Written on 6 Aug 2018

Following the high-profile failure of the previous attempt at bringing opt-out competition damages proceedings, the Competition Appeal Tribunal is considering both opt-out and opt-in claims in relation to a major truck cartel. The CAT's decisions on the case management of these claims could have significant implications for future follow-on damages claims.

The applications to the CAT

The apparent lull in the CAT’s work on collective competition claims has come to an end, with two applications for “collective proceedings orders” (CPOs) being filed in relation to a lengthy cartel in medium and heavy trucks. UK Trucks Claim Limited (UKTCL), a special purpose vehicle formed for the purposes of the claim, filed its application for an “opt-out” claim (with a fall-back option of an “opt-in” claim) on 18 May 2018 (published 29 June 2018).

Now the trade body, the Road Haulage Association (RHA), has filed its application for an opt-in CPO (17 July), published on 27 July. Both claims are backed by third party funding.

The cartel

On 19 July 2016 the European Commission published details of a fine of €2.93 billion that it had imposed on a cartel of truck manufacturers (MAN, Volvo/Renault, Daimler, Iveco and DAF). The cartel lasted from 1997 to 2011. At the time, this was the largest fine ever imposed by the Commission for anti-competitive behaviour. The manufacturers fined at that time had settled the case with the Commission. Scania, however, denied the charge and refused to settle, but was later found guilty of the infringement and fined €880 million in September 2017 (a finding that it is appealing).

The UK and EU claims

Since the original Commission decision, a number of claims have been filed against the truck manufacturers across the EU, including in the UK. In the UK, the present claimants are the first to seek a CPO from the CAT since Walter Merricks failed in his ambitious attempt to bring an “opt-out” collective claim against Mastercard on behalf of all UK adults. UKTCL will undoubtedly be looking to address the shortcomings identified by the CAT in the Merricks claim when making its own application. That case did, however, confirm that third party funding was permissible in collective claims, and therefore paved the way for both the recent CPO applications.

The first novel question for the CAT will be whether to certify an opt-out claim (that is, one on behalf of all members of a class who have not opted to be left out) when other claims by both individual companies and the RHA are being brought, and if so, how the “class” should be defined. The RHA has indicated that around 3,500 companies have signed up to its opt-in action. One option for the CAT would be to exclude members of the RHA claim, and other claimants who are already known, from the defined class.

If both claims go ahead under CPOs, the CAT will then need to decide how they should be managed most efficiently. The next step in both the claims will be the hearing of the application for a CPO, neither of which is yet scheduled, but which may well be combined.

Claimants advised by Osborne Clarke have also already brought trucks actions in Italy and Germany, and actions are being prepared and considered in the UK and a number of other jurisdictions. If you would like further information please talk to one of the experts listed below or your usual Osborne Clarke contact.