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Commercial Court No. 1 of Oviedo (Judge Mr. Alfonso Muñoz Paredes) has issued an important judgment in the truck cartel case, in which several European manufacturers face multiple follow-on claims after the decision of the European Commission of July 19, 2016.

The judgment examines in depth the expert reports submitted by the parties. After a detailed reasoning (20 pages), the court: (i) rejects the expert report submitted by the claimant, represented by CCS; and (ii) accepts the expert report submitted by Daimler A.G., “considering that there is no evidence of overcharge and that the E.CA Economics report fully rebuts any presumption or maxim of experience.”

Relying on Supreme Court judgment No. 651/2013, of November 7, in the sugar cartel case, Commercial Court No. 1 of Oviedo concludes that “requiring an alternative and sounder estimate,” as the Supreme Court did, “does not exclude the plausibility of zero overcharge in the truck cartel (without evidence of overcharge). Otherwise, there would be a risk of case law standardization (and mass litigation should not entail mass judicial decisions). Also, the enforcement of private competition law against cartels—at an early stage in Spain—could become a walk to the gallows, some sort of certus an incertus quantum, thus forcing cartelists to renounce their innocence (zero overcharge) and plead guilty to mitigate the punishment (always a better alternative).”

In this context, the zero-overcharge alternative “is neither unreasonable nor acceptable by itself (just like the overcharge estimated by the claimant). As any expert-based evidence, it must be subject to critical review and assessed together with the rest of the evidentiary material in the file.” According to the judgment, even if there were a presumption of damage under article 76 of the Spanish Competition Act 15/2007, of July 3 (quod non), said presumption “is rebuttable. If this is the case with a legal presumption, it is all the more so with a praesumptio hominis.”

After a detailed analysis, the judge not only concludes that “there is no evidence of overcharges” but that is “scientifically proven that there are none”—thus rejecting the claim in its entirety.

This post is also available in: Español

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olga.andres@cuatrecasas.com