Damages claim: German court dimisses CDC follow-on claim

By judgment of 18 February 2015 (Az. VI U 3/14), the Cartel Senate of the Higher Regional Court of Düsseldorf (OLG Düsseldorf) dismissed the appeal of Cartel Damage Claims S.A. against the judgment of the District Court of Düsseldorf (Landgericht Düsseldorf) of 17 December 2013 (Az. 37 O 200/09).

Consent to an appeal on a point of law was refused. The plaintiff has therefore failed at the second instance, too, with a test case against a number of cement manufacturers. Noerr represented Cemex Deutschland AG, a defendant in these proceedings.

In the proceedings, the plaintiff claimed damages under Sec. 1, 33 ss. 1 Act Against Restrictions of Competition old version and Sec. 823 ss. 2 Civil Code in connection with Article 81 European Treaty relying on the fine imposed by the Federal Cartel Office in 2003 following the accusation that the defendants in the present proceedings were parties to an agreement in breach of cartel law between 1988 and 2002. The Plaintiff, a company under Belgian law, attempted to combine damages claims of many companies by having these claims assigned to it by customers of the cement manufacturers. The overwhelming part of the purchase price for the claims consisted of a share in the damages received by the Plaintiff in the event of a successful claim.

The Landgericht Düsseldorf in a landmark judgment of 17 December 2013 established an obstacle to such combined claims for the present case and placed clear legal limits to such a procedure. The claim failed already on the question of the locus standi of the plaintiff. The Landgericht classified the assignment on the one hand as invalid according to Sec. 134 Civil Code because the plaintiff had no authority to take over claims for commercial purposes which would have been necessary at that time according to the applicable RBerG. While the plaintiff caused the claims at the end of 2008/beginning of 2009 to again be assigned to it, when it caused itself to be registered according to the then valid RDG, these assignments were, however, in the opinion of the Landgericht in breach of morals and void according to Sec. 138 ss. 1 Civil Code.

The Court assumed that the plaintiff at the moment of the assignment was not in a position to pay the considerable costs for which it would be liable if the case were lost. In accordance with established judgments (RGZ 81, 175, 176; BGHZ 96, 151; OLG Munich, judgment of 14 December 2012 - 5 U 2472/09), assignments of claims may not be abused to deny the opponent the possibility of enforcing its legal right to reimbursement or payment of costs. In addition, the Landgericht based the dismissal of the claim on the claim being statute-barred. The allegedly damaged customers (assignors) were aware of their claims already in 2003, so that the additional assignment at the end of 2008/beginning of 2009 occurred only after the expiry of the period of limitation. In particular, the Landgericht rejected the application of Sec. 33 ss. 5 Act Against Restrictions of Competition new version to old claims. In addition, there are naturally many cartel law legal questions in dispute in this litigation which is conducted since 2005.

The dismissal of the appeal by the Oberlandesgericht Düsseldorf confirms that a combination of claims including for damage suffered due to a cartel, must surmount significant obstacles. Alone the fact that combining claims may have procedural economic advantages is not adequate for the admissibility of the business model of the plaintiff. The proceedings emphatically show that precisely the defence of cartel damages claims involves multiple procedural and substantive law legal questions and lines of defence.

Acting for the defence in these proceedings, Noerr relied on an inter-disciplinary team of competition and litigation lawyers.