The activities of CDC Cartel Damage Claims in relation to the German cement cartels have attracted considerable attention both in Germany and internationally. CDC brought two legal actions in Germany concerning damage claims acquired from more than 35 corporate customers of the German cement producers, at the time when such actions had not been ever tested before. The first action for damages was filed in 2005 before the Regional Court of Düsseldorf, and the second one in 2015 before the Regional Court of Mannheim. The action filed in 2005 was the first large scale antitrust damage action in Europe.
Background – German Cement Cartels
In April 2003, the German Federal Cartel Office (FCO) imposed fines totalling EUR 702 million on twelve companies and their representatives for their participation in the German cement cartels. The six largest German producers Alsen AG (now Holcim Deutschland AG), Dyckerhoff AG (now Dyckerhoff GmbH), HeidelbergCement AG, Lafarge Zement GmbH, Readymix AG (now Cemex Deutschland AG), and Schwenk Zement KG accounted for EUR 660 million of the fine. According to the FCO, the cement producers had entered into illegal quota and market-sharing agreements throughout Germany since the beginning of the 1990s at the latest. In June 2009, upon appeal the fine was reduced to EUR 330 million because of incomplete data for setting the fines. However, both the Higher Regional Court of Düsseldorf and the German Federal Court of Justice confirmed the existence of the cartels in the German cement sector.
CDC’s damage actions
Its first action, lodged in August 2005, was deemed admissible by the Federal Court of Justice in 2009. Subsequently however the action was dismissed by the Higher Regional Court of Düsseldorf on appeal in February 2015 given the court’s view that the assignment of claims by the damaged companies to CDC were invalid. The main reason for declaring the assignments invalid was the alleged sole purpose of shifting of cost risk from damaged companies to CDC which in the courts’ view did not have the financial capacity to bear the adverse costs at the time of the assignments. In 2005, in contrast, the Düsseldorf Regional Court ruling on the value in dispute had assumed that CDC’s economic situation would not be seriously jeopardised if CDC had to bear the costs of litigation in the event of losing the case.
As a matter of fact, CDC has made advance payments for court fees totalling more than EUR 713,000 at the end of the process. Furthermore, CDC has made full cost reimbursements to all opposing parties after its damage action and the appeal were dismissed, totalling more than EUR 3.5 million. Thus, all costs have been paid. The Higher Regional Court of Düsseldorf did not allow a further appeal against its judgment of 18 February 2015. It therefore has become final.
On 16 September 2015, CDC filed its second damage action relating to the German cement cartels, this time before the Regional Court of Mannheim against HeidelbergCement. Against the background of the judgment of the Düsseldorf Court of 18 February 2015, CDC took measures to secure adverse legal costs for three instances. CDC has provided a precautionary security of more than EUR 2.3 million to the benefit of the defendant and the state. Bringing the new legal action shows the dedication and persistence of CDC when it comes to the enforcement of antitrust damage claims.
On 24 January 2017, the Regional Court of Mannheim confirmed the admissibility of the action. However, the Mannheim Court rejected the claim in its entirety as time barred. The Mannheim Court thereby followed its appeal court, the Higher Regional Court of Karlsruhe, which had decided in a judgment of 9 November 2016 that a 2005 statutory provision suspending limitation periods in antitrust damages cases would not be applicable to claims which arose prior to entry into force.
In its landmark judgment of 12 June 2018, the German Federal Court of Justice provided long awaited legal certainty in relation to limitation periods. The judgment confirms the view of the majority of Higher Regional Courts in Germany and overruled the interpretation of the Higher Regional Court of Karlsruhe which lead to the judgment of the Mannheim Court dismissing the second cement action of CDC.
As CDC filed an appeal against the judgment of the Mannheim Court, it’s action is currently pending before the Higher Regional Court of Karlsruhe. At the time of filing in September 2015, the value of the claim amounted to more than EUR 138 million in damages including interest.