Daimler (Ententes - Camions a ordures menagères) (Competition – Claim for compensation for damage caused by a practice found to be contrary to Article 101 TFEU - Refuse collection trucks - Opinion) [2022] EUECJ C-588/20

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Daimler (Ententes - Camions a ordures menagères) (Competition – Claim for compensation for damage caused by a practice found to be contrary to Article 101 TFEU - Refuse collection trucks - Opinion) [2022] EUECJ C-588/20_O (24 February 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C58820_O.html Cite as: ECLI:EU:C:2022:130, [2022] EUECJ C-588/20_O, EU:C:2022:130

(Request for a preliminary ruling from the Landgericht Hannover (Regional Court, Hanover, Germany))

(Reference for a preliminary ruling – Competition – Claim for compensation for damage caused by a practice found to be contrary to Article 101 TFEU – Agreements, decisions and concerted practices – Commission decision finding an infringement – Settlement procedure – Products concerned by the infringement – Trucks – Specialised vehicles – Refuse collection trucks)

1. The present reference from the Landgericht Hannover (Regional Court, Hanover, Germany) relates to the interpretation of Commission Decision of 19 July 2016 – C(2016) 4673 final – relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39824 – Trucks) (‘the Decision’). (2) In that decision, the Commission imposed the highest cartel fine per case to date: namely, EUR 2.93 billion (and, overall, EUR 3.81 billion (3)) on truck producers for colluding to increase prices for trucks artificially and to pass on the costs of compliance with stricter emission rules over a period of 14 years. The reference arose in the context of a so-called ‘follow on action’ between the Landkreis Northeim (administrative district of Northeim, Germany, ‘the Northeim district’) and Daimler AG (‘Daimler’). The Northeim district is seeking compensation from Daimler for harm caused by a practice prohibited under Article 101(1) TFEU and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’) in relation to refuse collection trucks it purchased from Daimler.

2. The referring court seeks to ascertain, in essence, whether the Decision should be interpreted as meaning that specialised vehicles, in particular refuse collection trucks, fall within the meaning of ‘products concerned by the infringement’ for the purpose of that decision.

I. The facts giving rise to the dispute in the main proceedings and the question referred for a preliminary ruling

3. In 2006 and 2007, the Northeim district (a body governed by public law) purchased two household refuse collection trucks from Daimler at the price of EUR 146 740.00 and EUR 146 586.58 respectively, following a call for tenders for each purchase.

4. On 19 July 2016, in the context of a settlement procedure, the European Commission adopted the Decision.

5. By that decision, the Commission found that several international truck manufacturers, including Daimler, MAN and Iveco Magirus, had infringed Article 101 TFEU and Article 53 of the EEA Agreement. The infringement consisted of collusive arrangements on pricing and gross price increases in the European Economic Area (EEA) for trucks weighing between 6 and 16 tonnes (‘medium trucks’) or weighing more than 16 tonnes (‘heavy trucks’) and the passing on of costs for the introduction of emission technologies for such trucks required by EURO 3 to 6 standards. The infringement covered the entire EEA and lasted from 17 January 1997 until 18 January 2011 (‘the cartel’).

6. Following the adoption of the Decision, the Northeim district brought an action for damages against Daimler before the Landgericht Hannover (Regional Court, Hanover). That action seeks compensation for the pecuniary harm suffered by that district as a result of the anticompetitive practices in which Daimler engaged. That action constitutes, in relation to that undertaking, a ‘follow-on action’ (an action for damages brought in a national court following a final decision of the Commission finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement).

7. The Northeim district takes the view that the refuse collection trucks, which it acquired from Daimler, are covered by the definition of ‘trucks’ in the Decision. That view is based on the wording of that decision, which does not exclude expressly specialised vehicles. (4)

8. By contrast, Daimler argues before the referring court that those refuse collection trucks are not covered by the Decision because they are specialised vehicles. It justifies this on the ground that, prior to the Decision, the Commission specified the scope of its investigations in a request for information of 30 June 2015 (‘the 2015 request for information’) sent to Daimler, stating that the term ‘truck’ does not cover used trucks, specialised vehicles (for example, military vehicles, firefighting vehicles), resold ‘add-ons’, aftersales services and other services and warranties.

9. In that context and having regard to the requirements of Article 16(1) of Regulation (EC) No 1/2003, (5) according to which, where national courts rule on agreements, decisions or practices falling within the scope of Article 101 or Article 102 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission, the referring court has doubts as to which products are covered by the cartel at issue in the main proceedings. More specifically, in view of the fact that, at national level, the case-law on whether specialised vehicles are covered by the term ‘trucks’ as defined in the Decision is not uniform, the referring court asks whether refuse collection trucks are excluded from the products covered by that cartel.

10. In that regard, the referring court points out, first of all, that, in recital 5 of the Decision, the Commission found, first, that ‘the products concerned by the infringement are trucks weighing between 6 and 16 tonnes (“medium trucks”) and trucks weighing more than 16 tonnes (“heavy trucks”) both as rigid trucks as well as tractor trucks’; and, secondly, that ‘trucks for military use’ are excluded from the scope of the Decision.

11. In those circumstances, the referring court considers, on the one hand, that the wording used by the Commission to describe the products concerned by the infringement may be understood as covering, in principle, only ‘normal’ trucks – with the exception of those intended for military use – and that, in the absence of an express statement, specialised vehicles, including refuse collection trucks, are excluded from the concept of ‘trucks’ used by the Commission, since they fall within the concept of ‘other goods’. (6)

12. On the other hand, according to that court, that same wording may also be understood as meaning that the concept of ‘trucks’ covers all types of trucks, that is to say, that it includes all types of specialised vehicles – with the exception of trucks for military use.

13. Next, the referring court is uncertain as to the effect of the 2015 request for information on the determination of the products concerned by the infringement. In particular, the referring court is uncertain whether the fact that the Commission stated that, for the purposes of that request, the concept of trucks does not cover second-hand trucks or specialised vehicles (in particular military vehicles, firefighting vehicles) implies that the above is merely a list of examples and is not an exhaustive list of specialised vehicles.

14. Finally, the referring court points out that the Decision is adopted pursuant to a settlement procedure which was initiated by the Commission following requests made to that institution by the parties involved in that procedure. In that context, that court is uncertain as to the effect of the fact that the scope of the anticompetitive conduct is determined in the context of such a procedure.

15. In those circumstances, the Landgericht Hannover (Regional Court, Hanover) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the decision of the [Commission] of 19 July 2016 – C(2016) 4673 final – relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39824 – Trucks) be interpreted as meaning that … specialised vehicles, in particular refuse collection trucks, are also covered by the findings of that Commission Decision?’

16. Written observations were submitted by the Northeim district, Schönmackers Umweltdienste GmbH & Co. KG (‘Schönmackers’), Daimler, TRATON SE (formerly ‘MAN’), Iveco Magirus, the Austrian Government and the Commission. All those parties (save for the Austrian Government) also took the opportunity to present oral argument at a hearing before the Court.

17. The Northeim district submits, first, that the request for a preliminary ruling is inadmissible because Daimler did not make use within the prescribed period of its right to bring an action challenging the Decision before the General Court and it therefore can no longer call into question the legality of that decision by bringing proceedings in the national courts against the domestic measures implementing that decision. National courts are bound by the validity of an EU measure, so that it is no longer possible to make a request for a preliminary ruling concerning the validity of the Decision.

18. Schönmackers, which intervened in support of the form of order sought by the Northeim district, submits that it does not appear that the referring court considers that the answer to the question referred is necessary to enable it to resolve the dispute in the main proceedings.

19. In the alternative, the Northeim district and Schönmackers argue, in essence, that the Commission’s request for information has no bearing on the interpretation of the Decision.

20. Secondly, the Northeim district and Schönmackers consider that there is nothing in the Decision to support the conclusion that refuse collection trucks are excluded from the scope of that decision.

21. Furthermore, according to the Northeim district, both trucks and specialised vehicles fall within vehicle category N within the meaning of Regulation (EU) 2018/858. (7) That finding is also supported by the fact that the scope of Regulation (EU) 2019/631 (8) and that of Regulation (EU) 2018/956 (9) cover, in general, commercial vehicles in category N.

22. Next, the Northeim district submits that, as is apparent from Article 4 of Directive 2006/126/EC, (10) the distinction by category of vehicles is made exclusively on the basis of the weight of the vehicles, the maximum number of persons who may be transported in that vehicle and the minimum age from which a person may be authorised to drive the vehicle.

23. Moreover, according to the Northeim district, the fact that refuse collection trucks fall within the category of ‘trucks’ is shown, in particular, by the list of motor vehicles and their trailers drawn up by the Kraftfahrt-Bundesamt (Federal Motor Transport Authority, Germany). A refuse collection vehicle is classified therein as a ‘household refuse bin truck’.

24. Daimler, supported by MAN and Iveco Magirus, claims that specialised vehicles are not trucks for the purpose of the Decision.

25. Those undertakings argue essentially, first, that in everyday language a distinction is drawn between trucks and specialised vehicles, ‘trucks’ being vehicles designed and built mainly for the transport of goods, whereas ‘specialised vehicles’ are vehicles built and equipped for a particular purpose. Secondly, Daimler, MAN and Iveco Magirus observe that the term ‘truck’ is defined and used in various legislative acts of secondary EU law. According to those undertakings, the definition given in EU law forms the basis of the findings in the Decision. Thirdly, Daimler, MAN and Iveco Magirus consider in essence that, taken as a whole, the wording of the Decision does not support the conclusion that specialised vehicles are covered by it. Fourthly, according to Daimler, MAN and Iveco Magirus, by reason of their intended purpose, equipment and special characteristics, the refuse collection trucks at issue in the main proceedings are not intended for the transport of goods but are specially designed for use in the waste sector and are therefore not covered by the Decision. Fifthly, Iveco Magirus claims that it is not clear – let alone obvious – for the addressees of the Decision that, in an action for damages, a national court may consider that that decision also concerns specialised vehicles. Sixthly, Iveco Magirus claims, in essence, that the principle of effective judicial protection enshrined in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union requires, in the event that doubts persist as to the material scope of the Decision, that it be interpreted restrictively and that specialised vehicles may therefore not be regarded as trucks for the purpose of that decision.

26. The Austrian Government and the Commission submit essentially that refuse collection trucks are among the products covered by the cartel and by the Decision.

27. The Northeim district, the applicant in the main proceedings, and Schönmackers submit essentially that the reference for a preliminary ruling and the question referred are inadmissible.

29. It is settled case-law that where the questions referred for a preliminary ruling concern the interpretation of EU law – as is the case here – the Court is in principle required to give a ruling. (11)

30. In the present case, the referring court is seised of a follow-on action for damages, brought on the basis of a decision of the Commission. In that decision, the Commission found that several undertakings, including Daimler, MAN and Iveco Magirus, had participated in a truck cartel and infringed Article 101 TFEU and Article 53 of the EEA Agreement. (12)

31. In the order for reference, the referring court explains that the applicant in the main proceedings (the Northeim district), which purchased two refuse collection trucks, considers that those trucks are among the products concerned by the infringement. On the other hand, Daimler submits before the referring court that those trucks are specialised vehicles and therefore do not fall within the material scope of the Decision.

32. It is clear that the referring court is unsure as to the correct material scope of the Decision and is unable to decide in the main proceedings whether those two refuse collection trucks are covered by the Decision or not.

33. It follows that the interpretation of the scope of the Decision sought by the referring court is necessary for that court to establish whether the action for damages is founded or not.

34. As regards the argument of the Northeim district in point 17 of the present Opinion, suffice it to point out that it follows from the order for reference that Daimler is one of the defendants in the main proceedings in an action for damages introduced by the Northeim district as a follow-on action on the basis of the Decision and Daimler does not contest the validity of that decision before the referring court.

35. Furthermore, contrary to decisions of the Commission ordering the recovery of State aid incompatible with the internal market, a Commission decision finding the existence of a cartel – such as the one at issue here – does not entail the need for any national measure to implement that decision.

36. It follows that it is only the interpretation of the Decision that is at issue here.

37. Finally, the Court has already been called upon to interpret Commission decisions in the area of competition law, since they are acts of a Union institution within the meaning of Article 267 TFEU. (13)

38. First of all, as the EU judicature has already ruled, ‘for the purposes of applying Article 101(1) TFEU, a prior definition of the relevant market is not required where the agreement at issue has in itself an anticompetitive object, that is to say, where the Commission was able to conclude correctly, without first defining the market, that the agreement at issue distorted competition and was liable to have an appreciable effect on trade between Member States. That applies, in particular, to the case of the most serious [agreements], expressly prohibited by Article 101(1)(a) to (e) TFEU’. (14) I consider that the above is, in any case, correct in relation to a cartel such as that at issue in the main proceedings.

39. In the present case, it is not in dispute that the cartel presented all of the characteristics of an agreement and/or concerted practice, within the meaning of Article 101(1) TFEU and Article 53(1) of the EEA Agreement, which had as its object the prevention, restriction and/or distortion of competition with respect to trucks within the EEA. (15)

40. Moreover, the EU judicature has also made it clear that ‘the market covered by a Commission decision finding an infringement of Article 101 TFEU is determined by the agreements and the activities of the cartel’. (16)

41. Indeed, it follows from the EU judicature that ‘it is not the Commission which arbitrarily [chooses] the relevant market but the members of the cartel … who deliberately concentrated their anti-competitive conduct on [the products concerned]’. (17)

42. In the light of the foregoing considerations, and given the nature of the preliminary ruling procedure, it is not for the Court to define the relevant product market in the present case, nor does it have to verify whether the Commission defined the relevant product market.

43. What the Court is required to do in the present case is to assess the scope of the Decision, that is, to establish which products are ‘concerned by the infringement’ found by the Commission in the Decision. In particular, it must determine whether it follows from the Decision that specialised vehicles, in particular refuse collection trucks, figure among the products concerned by the infringement.

44. It should be pointed out at the outset that the various definitions of the concepts of ‘truck’ and ‘specialised vehicle’ – appearing in several secondary EU legislative acts (such as Directive 97/27/EC (18)) – referred to by the parties are irrelevant, since the Commission did not rely on any such acts/definitions in the Decision and it contains its own definition of the products concerned by the infringement, which is relevant to the assessment of the present case. Hence, the Court should base its reasoning solely on the specific definitions and wording of the Decision itself.

45. It is settled case-law that ‘in interpreting a provision of [EU] law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part’. (19)

46. However, the Court cannot interpret that provision against its clear and precise wording. (20)

47. First, it is not in dispute that the definition of ‘trucks’ in the Decision corresponds to that in the statement of objections, the only difference being that in the Decision the Commission excluded expressly trucks for military use (had this not been the case, the undertakings would have presumably appealed against the Decision on that basis).

48. Article 1 of the Decision provides: ‘by colluding on pricing and gross price increases in the EEA for medium and heavy trucks; and the timing and the passing on of costs for the introduction of emission technologies for medium and heavy trucks required by EURO 3 to 6 standards, the following undertakings infringed Article 101 TFEU and Article 53 of the EEA Agreement during the periods indicated: … c) Daimler AG, from 17 January 1997 until 18 January 2011’ (‘the infringement’).

50. Recital 5 states: ‘the products concerned by the infringement are trucks weighing between 6 and 16 tonnes (“medium trucks”) and trucks weighing more than 16 tonnes (“heavy trucks”) both as rigid trucks as well as tractor trucks (hereinafter, medium and heavy trucks are referred to collectively as “Trucks”). [Footnote 5 here reads: “excluding trucks for military use”.] The case does not concern aftersales, other services and warranties for trucks, the sale of used trucks or any other goods or services sold by the addressees of this Decision’.

51. The wording of the Decision clearly shows that it covers the sale of all medium and heavy trucks, whether rigid trucks or tractor trucks. (21)

52. According to the wording of that decision, only trucks for military use are expressly excluded. In addition to trucks for military use, the Decision does not cover aftersales services, other services and warranties for trucks, the sale of used trucks or any other goods or services (22) sold by the addressees of that decision.

53. As far as specialised vehicles are concerned, given that the Decision excludes from its scope only trucks for military use, it must be regarded as covering all trucks weighing between 6 and 16 tonnes and over 16 tonnes, including specialised vehicles (with the only exception being trucks for military use).

54. If the Commission had wished to exempt other types of trucks, such as refuse collection trucks, from the scope of the Decision, it would have mentioned them explicitly.

55. To my mind, this is the only reading of the Decision that respects the principles of legal clarity and legal certainty. Those two principles go hand in hand.

56. First, the principle of legal clarity requires that acts adopted by EU institutions – such as Commission decisions in competition cases – be clear and unambiguous.

57. Secondly, the general principle of legal certainty, which is a fundamental principle of EU law, requires, in particular, that ‘rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly’. (23)

58. In that regard, the Court has already held that the requirement of legal certainty must be observed all the more strictly in the case of EU rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them. (24)

59. Furthermore, this reading of the Decision is also called for since exclusions – such as the one in the Decision which excludes only trucks for military use – must be interpreted strictly.

60. I consider, as does the Northeim district, that the decision to insert the footnote concerning trucks for military use immediately after the description of the trucks covered by the Decision in recital 5 thereof clearly shows that the Commission had considered that specialised vehicles were among the products covered by the Decision and could not be classified, for instance, as ‘other goods sold by the members of the cartel’.

61. Moreover, it also follows from a systematic comparison with other passages of the Decision that that decision also covers specialised vehicles (save trucks for military use).

62. I agree with the Commission that it is relevant to point out that the cartel in which Daimler participated included anticompetitive arrangements relating to gross price lists indicating the prices of the various components, as well as to truck configurators, which formed the very basis of a large number of individual vehicle configurations. That has also been pointed out in the judgment KZR 35/19 of the Bundesgerichtshof (Federal Court of Justice, Germany). (25) Since each truck was suited to the needs of the customer, the anticompetitive conduct thus related precisely also to the various elements and components of the trucks.

63. There is nothing in the documents before the Court and, in particular, in the Decision, which suggests that, unlike other trucks, refuse collection trucks were not concerned by the cartel.

64. The fact that a refuse collection truck may contain components different from those of trucks intended for a different use does not mean that it is no longer a truck and, still less, that it is not a truck covered by the Decision. By contrast, the arguments of the Austrian Government and the Commission to the effect that the majority of the characteristics and components of refuse collection trucks are, in principle, identical to those of other types of trucks are much more convincing.

65. In that regard, the mechanism of the cartel at issue, described by the Commission in recitals 27 and 28 of the Decision (‘Price setting mechanisms and gross price lists’) and recitals 46 to 60 thereof (‘Description of the conduct’), does not allow the conclusion that specialised vehicles are excluded from the products concerned by the infringement.

66. It is apparent from recital 28 of the Decision that the gross price lists used by the undertakings concerned included the prices of all models of medium and heavy trucks and all factory-fitted options (for specialised equipment) that the respective manufacturer offered. Moreover, as is apparent from recital 46 of that decision, the undertakings concerned exchanged gross price lists and computerised truck configurators containing all models and options, which made it possible to calculate gross prices for any truck pattern. Next, recital 48 of the Decision indicates explicitly that the exchange of truck configurators helped the comparison of own offers with those of competitors and so it could be understood from those configurators which extras would be compatible with which trucks, and which options would be part of the standard equipment or an extra. Finally, it is apparent from recital 56 of that decision that the information exchanged between the undertakings which infringed Article 101 TFEU concerned either the basic truck models or the trucks and the available options (this was often indicated separately in the tables exchanged between the undertakings). (26)

67. It follows from the documents before the Court, and in particular the Decision, that the gross price lists and the configurators concerned parts and components, which are also used on specialised vehicles (such as refuse collection trucks).

68. As a consequence, optional extras and configuration options were also part of the cartel and were therefore covered by the Decision.

69. Therefore, I agree with the Bundesgerichtshof (Federal Court of Justice), which has already had an opportunity to rule on the very question at issue in the present case and which held (27) that the Decision contains nothing to support the conclusion that ‘specialised vehicles’ are not among the products concerned by the infringement. On the contrary, it is apparent from recitals 28 and 46 to 48 of that decision that the infringement at issue concerned all special and standard equipment and models and all factory-fitted options offered by the respective manufacturer.

70. In paragraph 34 of that judgment, the Bundesgerichtshof (Federal Court of Justice) held essentially that the appellate court did not err in law by ruling that there was causation giving rise to liability for damages also for the purchases of a concrete mixer truck, two dump trucks and a flatbed truck. It also held that the appellate court rightly did not infer from the Decision that those trucks were not covered by the cartel agreements. According to the Decision, which is binding on national courts, trucks between 6 and 16 tonnes and those over 16 tonnes, both tractor and rigid trucks, are covered by the Decision. It ruled that only trucks for military use, aftersales services, other services and warranties for trucks, the sale of used trucks or any other goods or services sold by the undertakings concerned were excluded from the scope of the Decision.

71. In paragraph 35 of that judgment, the Bundesgerichtshof (Federal Court of Justice) also ruled that the appeal did not reveal any submissions or factual instances which would support the argument that the above three types of trucks, without the superstructures characteristic of a dump truck or a concrete mixer truck, differ from the basic models or ‘reference types’ to which the defendant undertaking and the interveners referred and which were in any case the subject of the list price agreements and precisely formed the basis for a large number of individual vehicle configurations. As a result, it also ruled that the undertakings’ arguments based on the 2015 request for information were irrelevant.

72. Moreover, several other German courts have already come to the same conclusion. They have held that specialised vehicles, in particular refuse collection trucks, are covered by the Decision. Those first- and second-instance national courts, upon establishing the facts, raised analogous arguments to the ones I am making in this Opinion and based that conclusion, inter alia, on the following considerations: (i) the fact that in their view the wording of the Decision was clear and did not exclude any specialised vehicle except for trucks for military use; (ii) the criterion laid down in the Decision to determine whether a particular truck comes within its scope is its weight; (iii) the undertakings’ arguments that specialised vehicles – such as firefighting trucks, dump trucks, Custom Tailored Trucks (CTTs) or refuse collection trucks – are not covered by the Decision find no support in the wording of the Decision; (iv) to the extent that the 2015 request for information mentioned that specialised vehicles were not covered by that request, that approach was in any event not reproduced in the Decision itself; (v) irrespective of the undertakings’ arguments, in many cases the applicants in the follow-on actions did not in fact buy, for instance, firefighting trucks or dump trucks from the defendant undertaking, but rather a truck chassis to which, where appropriate, the firefighting parts of the superstructure were then fitted by third-party undertakings. (28)

73. I consider that those arguments of the German courts are convincing and also applicable mutatis mutandis to refuse collection trucks. Indeed, since the chassis is broadly identical for such uses, the main differences relate to the bodywork (superstructure) of a truck, it follows that it is not possible to define in the Decision in a useful and precise manner a subcategory of ‘specialised vehicles’.

74. Therefore, given that the Decision does not mention any other exception or restriction concerning the trucks covered by the infringement, the clear and explicit wording of that decision – the Decision being based explicitly only on the criterion of weight of a truck – covers all medium and heavy trucks, excluding those for military use. As a result, it covers specialised vehicles and, in particular, the refuse collection trucks at issue in the main proceedings.

(2) The context and the objects of the rules of which the provision at issue is part

75. As mentioned in point 45 of the present Opinion, in the interpretation of the Decision it is also necessary to take account of the context in which it occurs and the objects of the rules of which it is part.

76. I agree with the Austrian Government that to exclude specialised vehicles from the scope of the Decision solely because the chassis used in the manufacture of such trucks has additional equipment is not consistent with either the general scheme or the spirit or purpose of the Decision. Indeed, all trucks, whether they are basic trucks or trucks with a special coachwork, are in principle built on the same chassis. Specialised vehicles used for purposes such as firefighting, waste collection, snow removal or street cleaning have as standard equipment the truck chassis manufactured by the undertakings concerned.

(3) The reasons why trucks for military use are excluded from the ‘products concerned’

77. In the context of the administrative procedure and of the discussions seeking to reach a settlement, the undertakings presented arguments to the Commission to the effect that trucks for military use should be excluded from the scope of the Decision. The Commission took those arguments on board.

78. It is important to point out that trucks for military use are specially equipped in view of their use and, as the Commission explained at the hearing, it could not establish with certainty that the prices of trucks for military use were based on the gross prices, which were exchanged between the undertakings, or that the configurators, which were also exchanged, included such trucks for military use.

79. It follows that it is clear why it was appropriate to exclude trucks for military use (and only such trucks) from the scope of the Decision.

80. In addition, I consider it relevant to state that at no point during the whole administrative procedure did any of the undertakings submit that refuse collection trucks should be considered to be excluded from the cartel.

(c) The 2015 request for information is not relevant for the determination of the‘products concerned by the infringement’ in a Commission decision

81. It follows from Article 18 of Regulation No 1/2003, entitled ‘Requests for information’, inter alia that ‘in order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings … to provide all necessary information. … When sending a simple request for information to an undertaking …, the Commission shall state the legal basis and the purpose of the request …’.

82. I consider, as do the Austrian Government and the Commission, that the content of a request for information sent in the context of the administrative procedure cannot have the effect of limiting the scope of a subsequent, final decision of the Commission or be used to determine the ‘products concerned by the infringement’ in a Commission decision.

83. As the Court noted, ‘a request for information is an investigative measure that is generally used as part of the investigation phase preceding the notification of the statement of objections and that the sole purpose of the preliminary investigation procedure is to enable the Commission to obtain the information and documentation necessary to check the actual existence and scope of a specific factual and legal situation’. (29) It is clear from the above points of this Opinion that the purpose of such requests is not to define or specify the products covered by the anticompetitive conduct, which is reserved for the statement of objections and the final decision of the Commission. As the 2015 request for information expressly stated, it was intended solely to determine the relevant sales for the purpose of calculating the fine in the light of the Commission’s discretion in that regard. (30)

84. There is a clear distinction between seeking facts for the purpose of the calculation of a fine, on the one hand, and the determination of the scope of a Commission decision on the other. Given that Daimler, Iveco Magirus, TRATON and MAN seek to blur that line, those arguments must be rejected.

85. Such requests for information seek to obtain additional information and clearly cannot prevent the Commission from defining either more narrowly or more broadly the relevant market or, in other words, the types of ‘products concerned by the infringement’. In fact, this may well turn out to be necessary precisely in view of the undertakings’ responses to the 2015 request for information.

86. In this context, it is important to note that, first, a request for information does not form part of the Commission decision and, secondly, it is not a legal act of the Commission (as an EU institution), but rather it is a procedural document drafted by the case team (of the Directorate-General for Competition). In the present case, it is therefore irrelevant for the purpose of determining the extent and scope of the infringement.

87. By contrast, the Decision is based on all the facts established in the administrative procedure, it constitutes the formal conclusion of that procedure and is adopted by the Commission as an EU institution (by the College of Commissioners).

88. The Decision clearly defined, in Article 1 and recital 5 thereof, the products which were the subject of the anticompetitive conduct. The Commission defined the products concerned by the infringement on the basis of the evidence in its possession.

89. It follows that for the purpose of establishing which products are concerned by the infringement, it is only the content of that decision that is relevant.

(d) Not taking account of the sales of specialised vehicles in the calculationof the fine has no impact on the above interpretation

90. Contrary to the arguments of Daimler, MAN and Iveco Magirus, the fact that, in calculating the fine, the Commission did not take account of the sales of specialised vehicles has no impact on my interpretation of the Decision.

91. The Commission took the sales which the undertakings declared in their responses to the 2015 request for information as a basis for its calculation. Specialised vehicles were excluded from that calculation, albeit not entirely. (31)

92. As indicated in recital 112 of the Decision, the Commission applied point 37 of the Guidelines on the method of setting fines, (32) which allows it to depart from the methodology of the Guidelines, to adjust uniformly the proportion of each undertaking’s value of sales for the purpose of calculating the variable and additional amounts of the fines. The Commission explained that it did this in the context of its discretion, inter alia for reasons of proportionality. The values of sales that the Commission used were as a result considerably lower, at any rate, than the values of sales actually directly or indirectly affected by the cartel.

93. In principle, the value of sales is one of the factors that the Commission uses in calculating fines (see the Commission’s explanations of that principle in recitals 108 and 109 of the Decision), the other being the duration of the infringement. (33)

94. I consider that the Commission acted within its discretion in this respect, (34) when it excluded specialised vehicles in establishing the value of sales. The Commission took account uniformly for all the undertakings concerned – and in favour of those undertakings – of a lower value of sales than the maximum that its discretion allowed it to rely on.

95. As a general rule, the calculation of fines by the Commission is not always entirely based on the sales affected by the cartel. (35)

96. Contrary to the arguments of Daimler, MAN and Iveco Magirus, the fact that the Decision was adopted in the context of a settlement procedure does not affect the determination of the scope of the anticompetitive conduct.

97. As is apparent from the Notice on settlement procedures, (36) the Commission does not negotiate the question of the existence of an infringement of competition law with the undertakings concerned by the settlement procedure. Rather the undertakings admit their participation in the cartel contrary to Article 101 TFEU and their liability in that regard. When a decision is adopted as a result of a settlement procedure, the Commission reduces the amount of the fine imposed on that decision’s addressees by 10%.

98. It follows from all the foregoing considerations that the procedural rules relied on by the parties are there to set out the procedure to be followed by the Commission and the parties concerned. Those rules cannot in general – or in the specific case in the main proceedings for that matter – affect the material scope of the infringement found by the Commission in the Decision.

(g) Purchases of the trucks at issue ‘further to a call for tenders’do not imply a different interpretation

99. The infringement found by the Commission in the Decision also covers purchases carried out in the context of public procurement (calls for tenders), at least to the extent that the purchasers of the trucks were bodies governed by public law. The anticompetitive conduct took place inter alia in the context of preparing calls for tenders.

100. As pointed out by the Austrian Government, aside from major private haulage companies, public contracting authorities are the principal clients for the purchase of the trucks concerned by the infringement (inter alia for the purposes of: cleaning roads, snow removal, refuse collection, waste water collection, public construction and other communal maintenance services).

101. There is no distinction made between direct sales and sales made further to calls for tenders in the Decision. The Decision is based mainly on gross price lists and configurators and that basis concerns all sales – irrespective of whether it was a direct sale or the outcome of a call for tenders.

102. It follows from all the foregoing considerations that the wording of the Decision concerning the scope of the infringement and the ‘products concerned by the infringement’ is clear – covering also specialised vehicles (except for trucks for military use) and, in particular, refuse collection trucks – and none of the arguments raised by the parties affect that conclusion.

103. I propose that the Court of Justice answer the question referred for a preliminary ruling by the Landgericht Hannover (Regional Court, Hanover, Germany) as follows:

Commission Decision of 19 July 2016 – C(2016) 4673 final – relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39824 – Trucks) must be interpreted as meaning that specialised vehicles – except for trucks for military use – and, in particular, refuse collection trucks, are covered by the findings of that decision.

2 OJ 2017 C 108, p. 6. A summary of the Decision is publically available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52017XC0406%2801%29.

3 The Commission imposed the former amount on those undertakings which decided to settle. It then also imposed a fine of EUR 880 523 000 on Scania, which had decided not to settle this cartel case. MAN received full immunity for revealing the existence of the cartel, thereby avoiding a fine of around EUR 1.2 billion.

5 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in [Articles 101 and 102 TFEU] (OJ 2003 L 1, p. 1).

6 Recital 5 of the Decision provides: ‘the case does not concern aftersales, other services and warranties for trucks, the sale of used trucks or any other goods or services sold by the addressees of this Decision’ (emphasis added).

7 Regulation of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC (OJ 2018 L 151, p. 1).

8 Regulation (of the European Parliament and of the Council of 17 April 2019 setting CO2 emission performance standards for new passenger cars and for new light commercial vehicles, and repealing Regulations (EC) No 443/2009 and (EU) No 510/2011 (OJ 2019 L 111, p. 13).

9 Regulation of the European Parliament and of the Council of 28 June 2018 on the monitoring and reporting of CO2 emissions from and fuel consumption of new heavy-duty vehicles (OJ 2018 L 173, p. 1).

10 Directive of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p. 18).

11 Judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána (C‑378/17, EU:C:2018:979, paragraph 26 and the case-law cited).

13 See judgments of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291), and of 13 June 2019, Copebi (C‑505/18, EU:C:2019:500).

14 Judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368, paragraph 176 and the case-law cited; not appealed).

15 See the Decision, recital 69. The Decision has not been appealed and has the force of res judicata.

16 Judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92, paragraph 131 and the case-law cited; the appeal to the Court of Justice was dismissed).

17 Judgment of 15 June 2005, Tokai Carbon and Others v Commission (T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 90; the appeal to the Court of Justice was dismissed).

18 Directive of the European Parliament and of the Council of 22 July 1997 relating to the masses and dimensions of certain categories of motor vehicles and their trailers and amending Directive 70/156/EEC (OJ 1997 L 233, p. 31).

19 See judgment of 7 June 2005, VEMW and Others (C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited).

20 See, to that effect, judgment of 15 July 2010, Commission v United Kingdom (C‑582/08, EU:C:2010:429, paragraph 51 and the case-law cited).

21 See also, in relation to the same Commission decision, judgments of 29 July 2019, Tibor-Trans (C‑451/18, EU:C:2019:635, paragraph 8), and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800). See also the Opinion of Advocate General Rantos in pending Case Volvo and DAF Trucks (C‑267/20, EU:C:2021:884).

22 As the Commission explained at the hearing, by the expression ‘any other goods or services’ it simply sought to cover anything that is not a truck. Indeed, some of the undertakings concerned, such as Renault, produce a great number of passenger vehicles and those vehicles clearly had to be excluded from the scope of the Decision.

23 Judgment of 3 June 2008, Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 69).

24 See judgment of 8 Mars 2017, Euro Park Service (C‑14/16, EU:C:2017:177, paragraph 38).

26 Recital 56 reads as follows: ‘the meetings involving the German-Level became more formalised and gross price increase information that was not available in the public domain was usually inserted in a spread sheet split by truck standard model for each producer … These exchanges took place several times per year … The future gross price increase information exchanged referred either only to the basic truck models or to the trucks and the available options (often this was indicated separately in the tables exchanged), and usually no net prices or net price increases were exchanged. Information on intended future gross price increases exchanged at the level of the German Subsidiaries was, in varying degrees, forwarded to the respective Headquarters’.

27 In paragraphs 34 and 35 of its judgment of 23 September 2020, KZR 35/19, DE:BGH:2020:230920UKZR35.19.0.

28 See inter alia the judgments of the Landgericht Stuttgart (Regional Court, Stuttgart, Germany) of 6 June 2019, 30 O 88/18 (paragraph 59 et seq. and the case-law cited; http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr= 28244), 30 O 124/18 (paragraph 58 et seq. and the case-law cited; http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr= 28238), and 30 O 38/17 (paragraph 77 et seq. and the case-law cited; http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr= 28241); judgment of the same national court of 23 December 2019, 30 O 132/18 (paragraph 31 et seq. and the case-law cited) as well as judgment of the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany) of 4 April 2019, 2 U 101/18 (paragraph 112 et seq. and the case-law cited).

29 Judgment of 10 Mars 2016, HeidelbergCement v Commission (C‑247/14 P, EU:C:2016:149, paragraph 37).

30 See judgments of 3 September 2009, Papierfabrik Koehler v Commission (C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 112), and of 19 December 2012, Heineken Nederland and Heineken v Commission (C‑452/11 P, not published, EU:C:2012:829, paragraph 92).

31 As the Commission explained at the hearing, in any event, some specialised vehicles were included in the value of sales, given that the parties were not able to exclude completely specialised vehicles sales from those values. The undertakings concerned confirmed that this was so in certain cases, since it depended on each undertaking’s approach to obtaining the relevant data and was linked to how easy or how difficult it was to extract data for the relevant sales.

32 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

33 The Commission also has regard to a number of factors such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. See points 19 to 26 of the Guidelines on the method of setting fines.

34 See judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P, EU:C:2005:408, paragraph 172).

35 First, the Commission is not obliged to take into account the sales actually affected by the cartel (judgment of 11 July 2013, Team Relocations and Others v Commission (C‑444/11 P, not published, EU:C:2013:464, paragraphs 76 and 77)). Secondly, the Commission is not obliged to take account of all the sales concerned (judgment of 14 Mars 2013, Dole Food and Dole Germany v Commission (T‑588/08, EU:T:2013:130, paragraph 620 et seq.); upheld on appeal by judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, EU:C:2015:184, paragraph 150 et seq.)), and judgment of 17 September 2014, Pilkington Group and Others v Commission (T‑72/09, not published, EU:T:2014:1094, paragraph 209 et seq.; the appeal to the Court of Justice was dismissed).

36 Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1).

Court of Justice of the European Communities (including Court of First Instance Decisions)