{"id":902,"date":"2024-11-05T18:20:02","date_gmt":"2024-11-05T17:20:02","guid":{"rendered":"https:\/\/www.lindenbaum.nl\/?p=902"},"modified":"2025-10-29T14:55:22","modified_gmt":"2025-10-29T13:55:22","slug":"right-to-assign-damages-follows-directly-from-eu-law","status":"publish","type":"post","link":"https:\/\/www.lindenbaum.nl\/nl\/right-to-assign-damages-follows-directly-from-eu-law\/","title":{"rendered":"Right to assign antitrust damages claims follows directly from EU law, AG opines"},"content":{"rendered":"\n

On 19 September 2024, Advocate General Szpunar (\u201cAG Szpunar<\/strong>\u201d) issued an opinion <\/a>on the right of litigation vehicles to bundle antitrust claims. In his opinion, the AG confirms that the right for injured parties of a competition law infringement to assign their claims to a litigation vehicle for the purpose of starting damages proceedings follows directly from the cartel prohibition of Article 101 TFEU. Moreover, national rules that make the assignment of antitrust damages claims impossible or excessively difficult should be disapplied.<\/p>\n\n\n\n

Background of the case<\/strong><\/p>\n\n\n\n

The case involves ASG 2, a German litigation vehicle, that claims damages from the Land of North Rhine-Westphalia for cartel violations. ASG 2 brings the case on behalf of several sawmills, that have assigned their claims to ASG 2.<\/p>\n\n\n\n

Assigning a claim to a claim vehicle (the \u2018assigmment model\u2019) is a common practice in antitrust damages cases. The assignment model is used because it is often less costly and more efficient to bundle claims in one case than to start multiple individual proceedings. Furthermore, claim vehicles may have better possibilities to seek third party litigation funding for the case. In the situation of \u201cscattered harm\u201d, with multiple victims of a cartel but with a relatively low damages amount per victim (for example in a situation of a cartel harming mostly small and medium-sized enterprises), the assignment model may be the only way to pursue a damages claim if there is no opt-out collective action model available (like in Germany).<\/p>\n\n\n\n

Under German law, claim vehicles require a specific license to \u2018represent\u2019 (injured) parties, which also applies to the situation of assignment of claims. ASG 2\u2019s license was challenged in court.<\/p>\n\n\n\n

Questions posed to ECJ<\/strong><\/p>\n\n\n\n

In the preliminary reference, the German District Court of Dortmund considers that under German law, the assignments at issue in the main proceedings were null and void and that, consequently, the claim must be dismissed without an assessment on the merits. The court comes to this conclusion because it considers that ASG 2 does not have the expertise to start proceedings for a stand-alone antitrust claim. This would in essence mean that it is prohibited to assign claims to ASG 2. The German court claims that the assignment model is the only effective model in Germany for ensuring the effective enforcement of the right to compensation for \u2018collective harm\u2019 or \u2018scattered harm\u2019 in cartel cases. The sawmills would therefore not have alternative options to enforce their rights under the cartel prohibition of article 101 of the Treaty on the Functioning of the European Union (\u201cTFEU<\/strong>\u201d).<\/p>\n\n\n\n

Against that background, the court questions in essence whether the German assignment rules comply with article 101 TFEU, the Antitrust Damages Directive and Article 47 of the Charter of Fundamental Rights of the European Union (the \u201cCharter<\/strong>\u201d), since it would be very difficult or even impossible to recover antitrust damages in Germany due to this rule. If EU law precludes the German assignment rules, the court would have to disapply them and regard the assignments as valid.<\/p>\n\n\n\n

The opinion of AG Szpunar<\/strong><\/p>\n\n\n\n

AG Szpunar identifies this case as an \u201cunprecedented opportunity\u201d to rule on the compliance with EU law of the rules on assignment (and, therefore, the assignment model used by litigation vehicles in antitrust damages claims).[1]<\/a>     <\/p>\n\n\n\n

AG Szpunar concludes that the assignment rules as outlined by the German court violate the EU cartel prohibition of Article 101 TFEU. The AG comes to this conclusion on the basis of the following:<\/p>\n\n\n\n