Chance for compensation from the truck manufacturers

A few weeks ago the European Commission imposed a record penalty for Europe's leading truck manufacturers for price fixing lasting several years. The Commission's decision gives the Polish carriers the opportunity to claim compensation for the inflated prices of vehicles.

Advance warning, it will be long, but I assure, that is worth reading to the end, because the game can come really big money J

European collusion

In statement of 19 July 2016 r. The Commission confirmed that punish penalty in the amount of 2.926.499.000 EUR four major truck manufacturers: Volvo/Renault, Daimler, Iveco i DAF. The reason for the penalty was running from 1997 do 2011 r. price fixing, which he was also attended by company MAN. The latter, however, was not punished, as he informed the Commission about the cartel. Since the above mentioned company also admitted to take part in an illegal agreement, penalties against them were still significantly reduced. According to the Commission colluded also he participated Scania, However, this in contrast to the other participants did not admit guilt, and in relation to it is conducted regularly conduct.

What concerned the agreement? Manufacturers set the prices for the average factory (from 6 do 16 t) and heavy (above 16 t) trucks, the date of the introduction of technologies aimed at reducing emissions to meet the standards of EURO 3 do EURO 6, and shifting rules on buyers costs of these technologies. The agreement was concluded in 1997 r. and probably would take the best, if not unexpected Control Commission on 18 January 2011 r. at the premises of companies suspected of collusion. knowing, what's up, Forged from that moment ceased pursuit of agreement.

The Commission's investigation resulted in placing allegations on 20 November 2014 r., which eventually were confirmed in the recently published decision. The decision itself It is not yet available, as it continues to work on determining the content of its, which will not contain confidential information and business secrets involved in collusion. No deadline has been given, in which the decision will be published.

What does this mean for carriers?

In the Communication the Commission indicated, that imposition of penalties on manufacturers opens the way injured parties to claim damages, and paid the penalty can not underestimate the amounts owed to victims collusion price. What is important according to the case law of the EU Court of Justice, and art. 16 paragraph. 1 Council Regulation (WE) no 1/2003 of 16 December 2002 r. on the implementation of the rules on competition laid down in Articles. 81 i 82 Treaty Commission decision finding an infringement of Community competition law is binding on all courts shall hear cases concerning the effects of the breach. This means that, that the victim does not have to prove, that the infringement took place, and only established in its property damage.

What is the basis for the claims of manufacturers? First of all, attention should be drawn, that price fixing agreements are a direct violation of European treaties – art. 81 i 82 Treaty establishing the European Community and who are their counterparts art. 101 i 102 Traktatu o funkcjonowaniu Unii Europejskiej. The Court of Justice of the EU m.in. judgment of 20 September 2011 r. C-453/99 stresses, that victims are entitled to claim damages for breach w / in laws, otherwise they would be ineffective. For this reason, national laws should provide for the possibility of effective redress of those infringing Community competition law.

How it looks in this particular case? In the first row it is necessary to determine the law applicable to claims by Polish carriers. In this respect refer to the two acts: Act of 12 November 1965 r. – Private international law in relation to the breach of the Treaty taking place before 11 January 2009 r. i Regulation (WE) no 864/2007 European Parliament and the Council of 11 July 2007 r. on the law applicable to non-contractual obligations (Rome II) in relation to infringements that occurred to 11 January 2009 r.

There is no doubt, that the admission of violations of the Treaty constitutes a tort. In accordance with Article. 31 § 1 Polish private international law obligations not imposed by legal actions are governed by state, in which the event giving rise commitments. It should therefore be laid, where physically committed a breach of the Treaty in the form of the conclusion of one of the agreements and the fulfillment of its conditions. In practice, however, such determination points will generally not be, especially that the agreements and decisions can be made remotely between several countries. For this reason, it seems appropriate to refer to Article. 7 p.p.m. which is, that if you can not determine the circumstances, upon which the jurisdiction of a particular foreign law, Polish law shall apply.

For violations taking place from 11 January 2009 r. there is no longer any doubt. That day, the Regulation Rome II, and that pursuant to Article. 31 It applies only to events invoking damage, which occur after its entry into force. The provision of Article. 6 paragraph. 3 lit. a regulation clearly indicates the, that the law applicable to non-contractual obligations arising from the restriction of competition is the law of the country, on the market, these practices have the effect. Since the agreement truck manufacturers triggered effect on the Polish market, appropriate for claims because of these effects will be the Polish law.

Who can claim compensation?

Now that we have established, that is likely to total claims against the participants in the collusion will apply Polish law, should determine, who has the right to claim damages.

Art. 415 k.c. which is the basis of tort liability does not contain any restrictions on signs and does not specify the persons entitled to claim against the perpetrators of tort. In practice, therefore, may be any, who suffered damage as a result of tort.

Who will fall into this category, in the present case? In practice each, who took possession of the vehicle, in respect of which included price fixing. Surely you can not circle entitled to compensation limit only very few entities concluding the sales contract directly with manufacturers. The price set by the manufacturer is affected by the sales price for all subsequent stages. Since it depends, therefore, both the price the dealer of the manufacturer and the buyer's agent in vehicles of different brands. Moreover, the victim could be the buyer of the vehicle used, if the price of the vehicle also depends to a large extent on the original price paid by the first user.

It also stressed, that entitled to compensation are not only buyers of trucks, but also those, which have concluded lease agreements for such vehicles. A characteristic feature of the lease agreement is for a, that the sum lease payment can not be lower than the price of the leased asset paid by the lessor. Therefore, the price, after which the lessor acquires the object of lease, It has an impact on the amount of lease installments. So if the price was inflated, the lessee is entitled to claim damages, he has suffered as a result of increased costs of leasing.

For what period must be compensated?

Conspiracy lasted from 1997 do 2011 r., but the answer to the question, for how long the victim will be able to claim compensation, unfortunately, it is not easy. The problem, that can stand in the way of effective redress, It is in fact barred.

In accordance with Article. 442¹ § 1 k.c. a claim for compensation for damage caused by a tort It shall expire with the lapse of three years from the date of, in which the victim learned of the damage and the person liable for it. However, this term can not be longer than ten years from the date of, where the harmful event occurred.

After the reading of this provision may result in the impression, that all claims are barred, if an agreement concluded in 1997 r. or that you can claim compensation only for vehicles purchased or leased from August 2006 r. But I believe, that such a proposal would be too far-reaching.

First described in case we had to deal with the act of a continuous nature, which means, that the mere implementation of the agreement and the sale at a fixed price were tort, so the limitation period should be counted for each transaction separately.

Second, given the nature of the offense, which they have committed manufacture, in particular the fact, that the conspiracy was long, and its existence was confirmed only after almost 20 years of its existence, can in my view, raise an argument, that use by manufacturers of the plea of ​​limitation in such a case constitute misuse of the law and has no legal effect in accordance with Article. 5 k.c.

Thirdly law of the Court of Justice of the European Union indicated, that although the limitation of claims for breach of Treaty provisions relating to competition is governed by national law, however, this the court hearing the case is obliged to assess the, the regulation does not make it impossible or excessively difficult the right to claim compensation for damage.

Adopting a literal interpretation of Article. 442¹ k.c. and lead to deprivation of the right to compensation practice entities, which suffered damage in the period 1997-2006, because they did not have any chance to formulate their claims before they have not been barred.

For these reasons, I am of the opinion, that istnieje szansa na odszkodowanie nie tylko za pojazdy nabyte w ostatnich latach, but also in the previous period.

Time is money

Because there is no guarantee, that the court will share my views on the limitation of claims, when many carriers are required quick action. both entities, that purchased vehicles before 2006 r., and strong and, who have acquired in recent 5 months 2006 r., should rapidly lead to the interruption of the limitation period. The former, because any reference to later accused of abuse of rights can only be, if the victim alone immediately take action to enforce his claim. The latter due to the fact, that every week can be barred another part of their claims.

Unfortunately, unless you disclosed the content of the Commission's decision - and it is not known when it will happen - filing a lawsuit against the producers it is extremely difficult, if not impossible. Without determining the content of agreements participants in the collusion will be difficult to determine the amount of damage, which exposes the victim to at least a partial loss and the need for investments.

However, you can now secure the claims of entities at risk of lapse. The fact, however, in the next episode soon 🙂

P.S. Of course, I am dealing with the same kinds of issues and already preparing lawsuits for writing 🙂