The claim of the extra cost by the “car manufacturers cartel” in leasing contracts

The sanction imposed in 2015 by the Commission of Markets and Competition (hereinafter, “CNMC”) to 23 car brands for having exchanged strategic and commercial information during the years 2006 and 2013 in order to increase their economic benefits raises issues such as the possibility of purchasers of vehicles through the renting modality to claim damages derived from the cartel. Although this issue is currently not resolved by the Spanish Courts and Tribunals for the “car manufacturers cartel” given the topicality of the matter, everything points to the fact that they will follow the criteria used for the “truck cartel”, specifically:< /p>

Active legitimation

Regarding the legal standing or who can claim the damages derived from the cartel in renting contracts, the jurisprudence has considered that purchasers of Vehicles within the cartel period through the renting formula hold the status of injured party and, consequently, are actively entitled to claim the extra cost paid for the total installments paid for their financial lease contract.

This is stated, among others, by Judgment No. 784/2020 of the Provincial Court of Valencia, of June 15, 2020, No. Rec. 1880/2019 issued in matters of “truck cartel”, which recognizes:

“the quality of injured party – from a broad perspective of the concept – to those who, within the period of cartelization, paid more in the acquisition of property or the right to exploit the cartelized assets regardless of the price payment formula (cash, in installments, through financial leasing, or renting)”.

Also, it should be mentioned that in financial leasing contracts the lessor may be a third party other than the car manufacturer, such as a financial institution, who owns the vehicle and he leases it for a monthly fee. In these cases, the jurisprudence has determined that it is also the financial lessee who has active legitimacy to claim the damage suffered by the cartel insofar as in the installments paid monthly he is paying the premium derived from the cartel and the financial lessor does not always suffer the damage and when you receive the monthly payments on time.

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For all of them, it is worth mentioning the Judgment of the Provincial Court of Pontevedra, of October 8, 2020, whose criterion has been used repeatedly by the Courts and Tribunals throughout the territory national. It goes like this:

“We often repeat that the legitimacy to bring an action for damages corresponds to who has suffered the damage; if this has consisted of the payment of a premium, it is clear that the legitimate primary party will be the one who acquired the vehicle by sale, or through any other valid means of acquisition, such as leasing, in the extent to which this contract allows payment to be deferred through an indirect financing formula, normally generating obligations only for the lessee [and this because] if the leasing entities had not received the payment of the lease price on time, they would have exercised the corresponding legal actions”.

However, in order for the financial lessor to be able to claim the damage suffered, he will have to provide the procedure with all the documents that link him to the manufacturer, such as, among others: </ p>

• The technical sheets of the vehicles.
• Circulation permits.
• Renting contracts.
• Invoices for fees paid.

Passive legitimation

Although it is clear that the claim for damages derived from the cartel will be addressed to those sanctioned by the CNMC in its 2015 resolution, it is necessary to consider whether the subsidiaries of the sanctioned companies They are passively legitimized. In terms of the “truck cartel”, this issue has recently been resolved by the High Court of Justice of the European Union (CJEU) in its Judgment of October 6, 2021, which states that subsidiaries must respond in the same way when their parent companies have been penalized for carrying out anti-competitive conduct.

Although the ratio decidendi contained in the CJEU Judgment serves as legal precedent to affirm that the subsidiaries must respond in matters of “cartel of manufacturers of cars”, the matter has not yet been submitted to the knowledge of the Courts and Tribunals and the particularities of this cartel compared to the “truck cartel” can determine a different result.

More information: “Ruling in the Truck Cartel that triples the compensation previously granted“

Proof of damage

Proving the damage is one of the most controversial issues given the obscurantism that surrounds any anti-competitive activity that prevents the injured party from obtaining documents that prove the damage suffered by the cartel. Within the framework of the “truck cartel” there have been different cases, the Courts having opted almost unanimously either to fully estimate the claims made (fully accepting the assessment of the damage made by the plaintiff), or to partially estimate them by applying the doctrine of the judicial estimate of the damage by application derived in turn from the doctrine ex re ipsa (or, what is the same, that the damages do not need to be proven because they are a necessary, logical and indefectible consequence of the offense).

You also have to consider what happens with the taxes (VAT and registration tax) applicable to the price agreed for the renting or how to assess the damage when the financial lease fee includes billed items (vehicle) and others that are not (eg insurance, maintenance, tires, etc.). Although the first question has been resolved in a more or less uniform way by the jurisprudence in the matter of “truck cartel” stating that, to assess the damage, at the final price paid for the renting service there is to subtract the VAT applied; The second of the issues raised is not unequivocally resolved, there being few pronouncements in this regard that do not establish a uniform criterion that we can extrapolate for the “car manufacturers cartel”.

Of course, to calculate the damage suffered, the percentage actually paid by the injured party must be taken into account. The same was said by the Provincial Court of Valencia in its Judgment of January 23, 2020 (No. Rec. 1147/2019) where it sentenced a truck manufacturer to pay 5% of the total amounts paid by the financial lessee who, when At the time of filing the claim, they only amounted to 35% of the agreed price.

Conclusion

Although there are currently no judgments estimating the damage suffered by the financial lessee as a result of the “car manufacturer cartel”, everything points to the fact that the national Courts and Tribunals are going to use the criteria applied in the “truck cartel” as a precedent, so that both individuals and companies that have signed renting contracts between 2006 and 2013 may join the wave of claims against to the entities sanctioned by the CNMC to recover the damage suffered as a result of the car cartel.

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