Truck cartel: the Supreme Court assesses (and rejects) an expert report submitted in hundreds of legal proceedings that has led to contradictory rulings by different courts

Spain - 04 / 03 / 2024

In a new batch of judgments, the High Court confirms its doctrine in relation to the judicial estimation of the damage in this type of claims, extending it now to a series of cases which were accompanied by a specific expert report which, although more sophisticated than those provided by the plaintiffs in the cases analyzed by the Supreme Court in its judgments relating to the so-called first wave, is still insufficient to accredit the amount of the damage.

On 14 March 2024, the Supreme Court handed down eight new judgments resolving the extraordinary appeals for procedural infringement and cassation filed in relation to claims for damages arising from the conduct sanctioned by the European Commission's decision of 19 July 2016, in the context of Case AT.39824-Trucks, known as the truck cartel (Judgements of the First Chamber of the Supreme Court no. 370 to 376 and 382 of 2024).

Specifically, in these new rulings, the Supreme Court –in addition to confirming the jurisprudential doctrine of its previous rulings of June and October 2023 on the truck cartel (the so-called first wave rulings)– assesses the expert report submitted together with eight lawsuits (filed before various courts throughout Spain, and which had received different responses from the courts and provincial courts that heard those proceedings).

1. Background

This new rulings of the Supreme Court on follow-on actions arising from the truck cartel essentially confirms the doctrine contained in the rulings of the first wave, which we analyzed in our previous publication.

The specific characteristics of the truck cartel (i.e., the geographical and temporal extension of the conduct, the high market share of the sanctioned manufacturers and, especially, the adoption of agreements on, among other things, price fixing and gross price increases) allow the Supreme Court to presume –ex article 386 of the LEC– the existence of a damage to the purchasers of this type of vehicles, consisting of the payment of a higher price than they would have paid in the absence of the anti-competitive conduct.
Furthermore, the Supreme Court reiterates that the decision of the different Provincial Courts to resort to the judicial estimation of the damage when the expert report provided by the defendant suffers from certain weaknesses (specifically, the failure to include the full time period of the conduct and/or the lack of analysis of the period immediately following the end of the conduct) is neither arbitrary nor unreasonable. Moreover, this does not deny the defendant the possibility of refuting the aforementioned judicial presumption ex article 386 of the LEC or of the possibility of proving the non-existence of damage.
All this without prejudice to the fact that, once again, the Supreme Court reiterates that the possibility of the national judge to resort to the power of judicial assessment of the damage in consecutive proceedings must be limited to situations in which, once the existence of damage has been established, it is practically impossible or excessively difficult to quantify it.

2. The Supreme Court's pronouncement on the specific expert report that accompanied the claims that gave rise to this new series of extraordinary appeals

In this new judgements, the Supreme Court assesses the specific expert report that was included with the lawsuits that initiated these eight cases and which, in very similar terms, has also been provided in hundreds of legal proceedings brought before the commercial courts throughout the country.

Specifically, the High Court based this extraordinary decision to reassess the evidence on (i) the fact that the claims initiating these proceedings fall within the phenomenon of mass litigation; and, consequently, (ii) on the need for the response given by the courts to substantially identical claims to be uniform, in favor of the principle of equality enshrined in Article 14 of the Spanish Constitution (SC).

In this regard, the High Court invoked its functions of unifying the interpretation and judicial application of the legal system to justify its decision to assess the aptitude and suitability of the specific expert report attached to the claims, which estimated the damage derived from the truck cartel using a synchronic method, which it also complemented with a diachronic method.

Contrary to what certain Provincial Courts had done when analyzing said expert report in the second instance judgments against which the aforementioned extraordinary appeals for procedural infringement and/or cassation were directed (which, on some occasions, fully upheld the claims accompanied by the aforementioned expert report), the Supreme Court considers that this specific expert report was not suitable for quantifying the damages arising from the truck cartel.

Thus, with regard to the comparative synchronic method developed in that expert report, the Supreme Court considers that its conclusions cannot be accepted. Essentially for five reasons:

First, and for what regards the products being compared in the analysis, the High Court considers that, contrary to what the expert's report maintains, light trucks and vans are very different products from medium and heavy trucks and therefore rejects the comparison between them that presides over the synchronous analysis of the expert's report.

Thus, the Chamber understands that (a) the nature of the products compared is different (as evidenced by the differences in the technical characteristics of the vehicles, the functioning of demand, the volume of production or the manufacturing structure of each of the markets) and that (b) the buyer of a medium or heavy truck is not comparable to the buyer of a light truck or van, especially taking into account the different purpose for which each of these products is acquired.

Secondly, the Chamber criticizes the fact that this specific expert report has been based on the gross prices published in an industry magazine without justifying for what specific reasons this can be applied to the final prices, especially when there are other relevant variables that have a real influence on the final price to be paid by the customer and which are not taken into account in these gross prices (i.e. discounts).
Thirdly, the Supreme Court criticizes the fact that this specific expert report does not include actual data for the year 1997, which is when –according to the European Commission's decision of 19 July 2016– the anti-competitive conducts began.
Fourthly, the Supreme Court rejects the selection of the data in that particular expert report as not being sufficiently representative –which, in its view, would entail risks of bias in the choice– and, in particular, the lack of justification for the heterogeneous composition of the database as regards the selection of vehicle’s brand, power ratings and masses.
Finally, and fifthly, the High Court rejects the conclusions of the comparative synchronous method on the grounds that the same variables have not been included in the regression models applied to the affected market (medium and heavy trucks) and to the compared market (light trucks and, as a reinforcement, vans).

On the other hand, as regards the diachronic method, which consists of comparing the prices during the conduct sanctioned with the prices of the subsequent period, the Supreme Court considers it equally unusable because the database used by this specific expert report suffers from imbalances in the distribution of prices by brands and periods, as well as from errors in the recording of the data itself.

In view of the above, the Supreme Court overturns the judgments of those Provincial Courts that had fully accepted the conclusions of this particular expert report.

Without prejudice to the foregoing, and in line with the doctrine established in its judgments of June and October 2023, the First Chamber of the Supreme Court understands that the fact that the specific expert report suffers from certain deficiencies that prevent it from sharing its estimate of the damage caused by the truck cartel does not impede to consider that the plaintiff has made a minimum evidentiary effort that does allow the court to resort to the judicial estimate of the damage.

And so, as it did in its first-wave judgments, the Supreme Court, in view of the lack of accreditation of a higher damage, judicially estimated the damage at 5% of the purchase price of each truck (which is what it considers to be the minimum amount of damage in view of the specific characteristics of the truck cartel). Consequently, and in the ruling on the cassation appeals, it upheld those judgments of the Provincial Courts that had judicially estimated the damage at a higher percentage.

3. Other new pronouncements

In addition to the above, there are two additional issues included in some of the Supreme Court judgments handed down in this new batch that are novel and in our opinion relevant. We refer to the following:

On the one hand, to the analysis of procedural standing to claim that the Supreme Court carried out in its judgment no. 381/2024.

In the specific case decided by this judgment, the plaintiff, who had financed the acquisition of the truck through a leasing contract, did not prove that he had paid the leasing company the last instalment of the lease (corresponding to the residual value of the truck); and, in view of this, the Provincial Court had considered that the plaintiff lacked standing to claim the excess cost that he claimed to have suffered in his lawsuit.

However, the First Chamber of the Supreme Court considers that the Provincial Court's interpretation of procedural standing to claim is erroneous. In this regard, it states that, in those cases in which the acquisition of the truck in question was financed by leasing, it would not be necessary to prove payment of the last instalment corresponding to the residual value insofar as, whether or not it was decided to pay it and acquire ownership of the truck, "the damage of having acquired it at a higher price than it should have been (if the cartel had not existed) would have been suffered in the same way".

On the other hand, the analysis of whether or not the so-called concrete mixer trucks are affected by the anti-competitive conduct sanctioned in the European Commission's Decision of 19 July 2016 (vid. judgment no. 373/2024).

In this regard, the High Court, on the basis of the Judgment of the Court of Justice of the European Union of 1 August 2022 (Case C558/20-Landkreis Northeim), which considers that special trucks are included within the market affected by the anti-competitive conduct, understands that the so-called concrete mixer trucks were also affected by the truck cartel.

4. There is still way to go

The Supreme Court has exceptionally entered into an analysis, via an extraordinary appeal for procedural infringement, of the evidential value of a specific expert report, justifying its decision, in essence, in consideration of the well-known fact that this same expert report has been provided in hundreds of legal proceedings throughout the country and that it is receiving an uneven assessment by different courts.

However, it is equally well known that there are other sophisticated expert reports –other than the report analyzed by these eight Supreme Court rulings– which have also been provided with numerous claims for damages arising from the truck cartel and which are also receiving disparate treatment by different commercial courts and Provincial Courts, so we will have to be attentive to whether the High Court, for the same reasons indicated in these recent rulings, assesses these other sophisticated expert reports –based on identical reasons of consistency and respect for article 14 of the SC– and, if it does, what assessment it may take in relation to these reports.