EU and German antitrust regulators confirmed investigations on allegations of
Sixty industry committees made up of about 200 employees allegedly discussed vehicle development, brakes, petrol and diesel engines, clutches and transmissions, and exhaust treatment systems.
Based on reports in the media,
Both suppliers and customers of the alleged infringers might be interested in claiming back the overcharges they had to pay. Fortunately for them, the Austrian legislator just recently implemented the EU Directive on Antitrust Damages Actions (Directive 2014/104/EU) by enacting the Cartel and Competition Law Amendment Act 2017, which entered into force retroactively on December 27, 2016, and is applicable to all harm incurred after December 26, 2016. Compared to the old legal regime, these new rules significantly facilitate the enforcement of private antitrust damage claims in Austria.
A successful claim for damages for antitrust infringements requires that an unlawful and culpable infringement be causal to the occurrence of harm. Due to the ongoing investigations by the European Commission, it should be noted that any final decision by a competition authority has a binding effect for the establishment of such an infringement. Thus, if the European Commission comes to the conclusion that the carmakers colluded on fixing prices and therefore violated Article 101 paragraph 1 TFEU, any damaged party will “only” have to establish the damages incurred and a causal link between the infringement and such damages.
In case an infringement is determined, the carmakers will be jointly and severally liable for all harm caused. Therefore, an injured party can also claim damages from other parties to the infringement from which it did not purchase goods or services (e.g., someone bought a car from VW and now claims damages from Audi). One of the main exceptions
Compared to the old regime, injured parties may now benefit from new rules on disclosure of evidence, which have so far been unknown in Austria. A party for antitrust damages claims proceedings can make a reasoned application for the disclosure of evidence by the opposing party or by a third party. In the next step, the court has to decide based on a proportionality test whether such a request has to be fulfilled, taking into account the legitimate interests of the parties. It
Lastly, it should be stressed out that the right to claim damages is time-barred after five years from the date the injured party knows or reasonably should have known of (i) the identity of the infringer, (ii) the antitrust infringement, and (iii) the fact that the antitrust infringement has caused harm to it. However, according to the Austrian Supreme Court, the requirement of “reasonably should have known” should not be stretched too far: newspaper articles on ongoing cartel proceedings do not present a sufficient objective basis for a successful antitrust damages claim—the injured party’s duty to investigate should not be overstretched (OGH 2.8.2012, 4 Ob 46/12m). Thus the current media attention on the alleged German
Customers or suppliers potentially harmed by the alleged
1 https://www.reuters.com/article/us-hightimes-ipo-exclusive-idUSKBN1AC1G8; https://www.theguardian.com/business/2017/jul/24/vw-calls-crisis-meeting-to-discuss-eu-cartel-inquiry-source-says.