Guest blog by Claire Stockford, partner and barrister, at Shepherd and Wedderburn
Trucks manufacturers that have already paid huge fines for their role in fixing prices in European trucks markets are now facing substantial claims from those who overpaid for their vehicles – and these cases could be just the first of many.
In 2016, the European Commission imposed record fines of more than €3.8bn on five trucks manufacturers – DAF, Volvo/Renault, Daimler and Iveco and Scania. MAN, the whistleblower, escaped a fine.
The commission found that the companies coordinated prices and the timing of the introduction of emissions technologies for medium (6-16 tonnes) and heavy (over 16 tonnes) trucks. The six manufacturers implicated in the price fixing are said to produce more than 90% of the trucks in the EU market.
All but Swedish truck maker Scania entered into a settlement decision with the commission. Scania was fined instead, a decision it is appealing.
The eye-watering fines were not the end of the story for the trucks manufacturers, which are now facing claims for damages from those who bought or leased trucks affected by the anti-competitive behaviours of the truck makers.
The fines, which go into European Union coffers, do not compensate those who purchased the over-priced vehicles. To recover those overpayments, relief must be sought through the courts.
Claims are being brought across the European Union by disgruntled customers who have overpaid for their trucks over a substantial period. The sums claimed could outstrip the sky-high fines. Even a few thousand pounds of overcharge per truck could produce a claim of many millions for businesses with substantial fleets.
The conduct also took place over a long period – some 14 years from 1997 to 2011 – which could mean that substantial interest payments are added to any damages amounts.
Claims have been brought in several jurisdictions across the European Union, including Ireland, Germany and the Netherlands. In the UK, approximately a dozen claims are known to have been launched at the time of writing.
Claimants range from Royal Mail to skip-hire companies and brewers, illustrating the breadth of the potential claimant cohort. Further claims are certain to be waiting in the wings.
Many of these could find their way to the UK courts, which are often favoured by claimants for their tendency to grant relatively broad disclosure.
Interestingly, two attempts have been made to bring collective actions in relation to trucks in the Competition Appeal Tribunal. The first is by the Road Haulage Association (RHA). This a so-called ‘opt-in’ claim. The RHA has put in place a claim structure and has permitted truck purchasers (whether or not they are RHA members) to opt into it if they wish.
The second is by an entity calling itself UK Trucks Claims Limited, a special purpose vehicle created to lodge the claim. This is an attempt at launching an opt-out action, meaning all British purchasers within the class will be included in the claim unless they opt out.
These will be closely watched, not just by those interested in the haulage industry, but also by those monitoring the development of collective actions in the UK.
Collective proceedings do not have a record of success in the UK. Since the doors were opened for opt-in and opt-out collective actions to be brought in the Competition Appeal Tribunal in 2015, two have previously been attempted (for mobility scooters and for users of Mastercard). Both of these attempts failed to gain permission from the UK’s Competition Appeal Tribunal to allow them to proceed as collective actions.
There are over 30 million trucks on Europe’s roads. The claims brought so far account for only a fraction of these vehicles. Many businesses that have overpaid for trucks over the 14-year collusion period could be sitting on considerable litigation assets.
The end of the road is clearly some way off for the trucks manufacturers as trucks claims are likely to be rolling through the courts for some time to come.