Truck Cartel (II): Court of Justice of the European Union dismisses Scania's appeal

In September 2017, the European Commission sanctioned Scania in Decision AT.39824 - Trucks, for having entered into agreements with its main competitors to prevent free competition in the marketing of medium and heavy trucks in the European Economic Area (EEA) from 1997 to 2011. The penalty amounted to approximately €880 million. Scania appealed the decision to the General Court, which dismissed the appeal in February 2022.

Scania appealed against the General Court's judgment, giving rise to the appeal which the CJEU also finally dismissed.

In effect, the CJEU upheld the General Court's judgment, and thus the Commission's previous decision, for several reasons.

First, the CJEU concludes that Scania has failed to show that the General Court did not properly assess whether the administrative procedure was conducted in accordance with the principle of impartiality, taking into account that during the administrative procedure before the European Commission, Scania initiated a settlement procedure. Such a settlement procedure allows the party under investigation for a cartel infringement to acknowledge its responsibility for the infringement and, in return, to obtain a reduction in the penalty.

In that regard, the CJEU considers that the impartiality of the European Commission is not affected by the fact that it is responsible both for conducting the administrative penalty proceedings and for adopting the settlement decision.

Second, the CJEU considers that there was no error in finding that the geographic scope of the infringement committed by Scania covered and was capable of affecting the entire European Economic Area, even though the infringement was committed in Germany.

Thirdly, it is also held that it was not necessary to require the Commission to prove that each of the acts constituting the infringement, considered in isolation and individually, also constituted infringements in themselves.

Finally, the CJEU considers that the Commission's power to impose penalties was not time-barred, since it was established that the single and continuous infringement committed by Scania had ended in January 2011 - and not in September 2004, as Scania claimed - even after the Commission's first act of investigation of 20 September 2010.

The adoption of this judgment by the CJEU is particularly relevant, especially in view of possible future actions for damages for antitrust infringements against Scania. The ratification by the CJEU of the General Court's judgment means that the Commission's decision is final, and therefore, a priori, the five-year limitation period established by Law 15/2007 of 3 July 2007 on the Protection of Competition ("LDC") for this type of action would now start to run.

Legal claims for damages for infringements of competition law arising from the so-called truck cartel have made a first "wave" in the Spanish courts in recent years, in actions against various truck manufacturers that accepted their liability before the Commission and did not appeal its decision to impose a fine. The legal deadline for initiating such actions has already expired. Now, a second wave of claims could be launched against Scania, a company that did contest - unsuccessfully, as we have seen - the Commission's decision in the various possible judicial instances.

The eventual rulings that may arise from this possible new wave of damage claims could illustrate certain very interesting legal aspects, such as the true scope of the principle of joint and several liability of cartel participants established in the LDC, since it seems likely that carriers affected by the cartel and who have not claimed damages to date will initiate new claims against Scania, even without having purchased trucks manufactured by this company.