Short Reads

Oberlandesgericht Düsseldorf confirmed that claim vehicle business model was contrary to public morals

Oberlandesgericht Düsseldorf confirmed that claim vehicle business model was contrary to public morals

Oberlandesgericht Düsseldorf confirmed that claim vehicle business model was contrary to public morals

01.04.2015

On 18 February 2015, the German Court of Appeal (Oberlandesgericht Düsseldorf; "OLG Düsseldorf") confirmed that the assignments of claims to claim vehicle ("CDC") in a follow-on action for damages in the cement cartel are void under German law.

It held that the assignments violated German public morals (gute Sitten) as it was foreseeable at the time of the assignments that CDC would not be able to meet a possible future litigation cost order. The financial risks involved in litigation were thus unjustifiably shifted to the defendants [See our March 2015 newsletter article]. The OLG Düsseldorf thereby upheld the judgment of the Landsgericht Düsseldorf of 17 December 2013 [See our January 2014 newsletter article]. The OLG Düsseldorf recently published its judgment in full.

The OLG Düsseldorf held that it is up to the claimant to show that it has sufficient financial means at its disposal at the time of the assignments (sekundären Darlegungslast). In this case, CDC failed to do so. The OLG Düsseldorf rejected CDC's argument that the value of the assigned claims themselves would suffice to cover a possible future litigation cost order. The OLG Düsseldorf confirmed that the relevant moment to assess whether a legal act violates public morals, is the moment the act is performed. Therefore, CDC's statements with regard to its financial position after the assignments took place, were held irrelevant.

Furthermore, the OLG Düsseldorf held that it is not necessary to establish that the parties to the assignments intended to violate public morals. It suffices that they knew of the facts constituting the violation, or that they chose to ignore such facts. In this case, the OLG Düsseldorf held that the shift of the risk involved in litigation was an important purpose of the assignments. It also held that the parties to the assignments knew or should have known and accepted the risk that CDC might have insufficient funding to meet a possible future litigation cost order.

CDC decided not to appeal this judgment by the OLG Düsseldorf, rendering it a final judgment.

The question of the validity of assignments to claim vehicles is at issue in several follow-on proceedings before national courts within the EU. One of them is the paraffin-wax case in the Netherlands. In that case, on 17 December 2014, the District Court of The Hague found that the assignments of damage claims to a different CDC entity were valid under German law. The District Court held that CDC had sufficient funds to meet a possible future litigation cost order at the time of the assignments [See our January 2015 newsletter article].

Team

Related news

30.04.2019 EU law
Climate goals and energy targets: legal perspectives

Seminar - On Tuesday April 30th, Stibbe organizes a seminar on climate goals and energy targets. Climate change has incited different international and supranational institutions to issue climate goals and renewable energy targets. Both the UN and the EU have led this movement with various legal instruments.

Read more

04.04.2019 NL law
Fine liability in antitrust cases is closely scrutinised by Dutch courts

Short Reads - A parent company can be held liable for a subsidiary's anti-competitive conduct if the parent has exercised decisive influence over the subsidiary, because the two are then considered a single undertaking. This is why the Trade and Industry Appeals Tribunal (CBb) recently found that the ACM cannot simply rely on managing partners' civil liability to determine fine liability for a limited partnership's anti-competitive conduct.

Read more

12.04.2019 NL law
Hoogste Europese rechter bevestigt dat overheden onrechtmatige staatssteun proactief moeten terugvorderen

Short Reads - De maand maart 2019 zal vermoedelijk de juridisch handboeken ingaan als een historische maand voor het mededingings- en staatssteunrecht. Niet alleen deed het Hof van Justitie een baanbrekende uitspraak op het gebied van het verhaal van kartelschade. Het heeft in de uitspraak Eesti Pagar (C-349/17) van 5 maart 2019 belangrijke vragen opgehelderd over de handhaving van het staatssteunrecht op nationaal niveau.

Read more

04.04.2019 NL law
Tick-tock: no reset of the appeal clock for amending Commission decision

Short Reads - The European Court of Justice recently upheld the General Court's order finding that metal production and recycling company Eco-Bat had submitted its appeal outside of the appeal term. Eco-Bat had relied on the term starting from the date of the European Commission's decision correcting figures for the fine calculation in the initial infringement decision.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring