Opinion of the Advocate General — ECLI:EU:C:2022:130
Date: 2022-02-24
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of that 
decision states the following: 
[5] ‘2.3 Summary of the infringement:  
The products concerned by the infringement are trucks weighing between 6 and 
16 tonnes (“medium trucks”) and trucks weighing more than 16 tonnes (“heavy 
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trucks”) both as rigid trucks as well as tractor trucks (hereinafter, medium and 
heavy trucks are referred to collectively as “trucks”) (4  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.’ 
[6] The English version of the decision 
(https://ec.europa.eu/competition/antitrust/cases/dec_docs/39824/39824_8750_4.p
df) […] is worded in that respect as follows:  
[7] ‘1. THE INDUSTRY SUBJECT TO THE PROCEEDINGS 
1.1. The product: 
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 [Or. 4] as tractor trucks (hereinafter, medium 
and heavy trucks are referred to collectively as “Trucks”) (5 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.’ 
[8] The applicant claims that the truck cartel identified by the Commission 
caused it pecuniary harm in the context of its purchase of its two refuse collection 
vehicles as a result of the excessive prices brought about by the cartel, and it seeks 
compensation from the defendant by way of the action brought in the present 
proceedings. 
[9] It takes the view that the refuse collection vehicles acquired by it are 
covered by the definition of trucks in the Commission’s decision, and it bases that 
view on the wording of the decision, according to which special-purpose vehicles 
are not expressly excluded. 
[10] The defendant, on the other hand, takes the view that, as special-purpose 
vehicles, the refuse collection vehicles at issue are not covered by the 
Commission’s decision. It justifies this on the ground that, prior to the decision of 
19 July 2016, the Commission specified the scope of the investigations in a 
[…]request for information of 30 June 2015 sent to the defendant […], stating that 
the term ‘truck’ does not cover used trucks, special-purpose/specialised vehicles 
(for example military vehicles, fire-fighting vehicles), resold ‘add-ons’, after-sales 
services and other services and warranties. 
[11] b. […] 
[12] aa. The provision of German law relevant to the resolution of the 
dispute reads as follows, in the version applicable here: [Or. 5] 
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[13] ‘Paragraph 33 of the Gesetz gegen Wettbewerbsbeschränkungen (Law 
against restrictions on competition, ‘the GWB’) – Right to obtain a prohibitory 
injunction, Duty to provide compensation 
[…] 
(4) Where compensation is sought for an infringement of a provision 
of this Law or of Article 81 or 82 of the Treaty establishing the 
European Community, the court shall be bound by the finding of an 
infringement in so far as it was made in a final decision of the cartel 
authority, the Commission of the European Community or the 
competition authority or the court acting in that capacity in another 
Member State of the European Community. The same shall apply to 
corresponding findings in final court decisions that have been issued as 
a result of challenges to decisions pursuant to the first sentence. […]’ 
[14] (Paragraph 33(4) of the Law against restrictions on competition in the 
version of 15 July 2005, in force from 13 July 2005 to 29 June 2013[…]) 
[15] […] In view of the defendant’s cartel infringements – alleged by the 
applicant – in connection with the vehicles at issue, which are based on the 
applicant’s orders of 19 June 2006 and 16 October 2007, […] the version of 
Paragraph 33(4) of the GWB in force on those dates is applicable. [Or. 6] 
[16] […]T]hat national provision constitutes a declaratory reproduction of the 
first sentence of Article 16(1) of Regulation No 1/2003, which is applicable under 
EU law in any event, at least in so far as the scope of that provision of EU law is 
sufficient […]. 
[17] bb. [national case-law] […]. 
[18] […]. 
[19] […]. 
[20] […] [Or. 7] […]. 
[21] c. For the following reasons, the referring court has doubts as to the 
interpretation of the Commission’s decision of 19 July 2016 within the meaning of 
the question referred for a preliminary ruling (aa.) and, in that regard, there is a 
connection between the Commission’s decision and the national law applicable to 
the main proceedings, and that connection is material to the decision to be given 
in those proceedings (bb.) […]: 
[22] aa. Doubts as to the interpretation of the Commission’s decision arise, 
first of all, from the fact that the precise wording of the Commission’s decision of 
19 July 2016 
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[23] ‘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”) (1 
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.’ 
[24] […] 
[25] generally refers only to trucks and expressly excludes only trucks for 
military use, meaning that [Or. 8] various possible interpretations regarding other 
specialised vehicles are conceivable. On the one hand, that wording could be 
understood to mean that, in principle, only ‘normal’ trucks – excluding those for 
military use – should be covered and that, in the absence of any express mention, 
specialised vehicles should therefore fall within the concept of ‘other goods’ and 
be excluded from the concept of ‘trucks’. On the other hand, this wording could 
also be understood to mean that the term ‘truck’ is supposed to refer to any type of 
truck, that is to say including all types of special-purpose vehicles – other than 
military vehicles. 
[26] Furthermore, doubts as to the interpretation of the Commission’s decision 
arise from the fact, referred to by the defendant, that, prior to the decision of 
19 July 2016, the Commission specified the scope of the investigations in a 
request for information of 30 June 2015 sent to the defendant, stating that the term 
‘truck’ does not cover ‘special-purpose/specialised vehicles (for example military 
vehicles, fire-fighting vehicles)’. 
[27] Were a Commission decision open to the same methods of interpretation as 
a law, it would be possible to reach a conclusion favouring a particular 
interpretation by consulting the history of the preliminary work for the decision; 
the statements made by the Commission prior to the adoption of the decision 
could then be consulted when interpreting the wording of the decision, in order to 
determine the scope of its effects. 
[28] It is unclear in this respect whether, in the context of its request for 
information of 30 June 2015, the Commission may have made it clear, in advance 
of the subsequent decision, that special-purpose/specialised vehicles are generally 
not supposed to be covered by the term ‘truck’, and the additional text in brackets 
in that request for information, stating ‘for example military vehicles, fire-fighting 
vehicles’, is merely a list of examples and is not an exhaustive list. [Or. 9] 
[29] Owing to the lack of express wording to that effect in the Commission’s 
decision of 19 July 2016, it is still unclear whether, after the request for 
information of 30 June 2015, the idea of excluding special-purpose vehicles, 
which had initially been considered before the decision was taken, may have 
actually been dropped again during the final decision-making process for taking 
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the decision, and an inclusion of special-purpose vehicles (other than military 
vehicles) was intended and meant when the final decision was taken. 
[30] If account is also taken of the fact that the Commission’s decision came 
about in the ‘settlement procedure’, it is also conceivable that, in this case, the 
linguistic formulations ultimately chosen by the Commission could have been 
made ‘softer’ in order to be able to actually achieve a settlement decision. Against 
this background, it is also unclear what impact such a possibly ‘softer’ wording 
was supposed to have had on the scope of the legal effects of the decision of 
19 July 2016 with regard to special-purpose vehicles. 
[31] bb. The connection, which is material to the decision to be given, 
between the Commission’s decision and the national law applicable to the main 
proceedings arises from the fact that, under German law, pursuant to the provision 
cited above, Paragraph 33(4) GWB (old version), the German courts are bound by 
the Commission’s findings regarding an infringement of cartel law. 
[32] The precise understanding of the wording of the Commission’s decision of 
19 July 2016, which must be clarified by way of interpretation, is therefore 
relevant to the extent of the binding effect provided for by national law. In that 
regard, the referring national court must be able to determine clearly, in the 
proceedings for damages under cartel law pending before it, the extent of the 
binding effect of the Commission’s decision of 19 July 2016. This is currently not 
possible. 
[33] In the case specifically referred, the success or failure of the action therefore 
hinges on the answer to the question raised in relation to the interpretation [Or. 
10] of the Commission’s decision of 19 July 2016. If the favoured interpretation 
were that special-purpose vehicles, such as the refuse collection vehicles at issue 
here, are not supposed to be covered by the effect of the Commission’s decision, 
the applicant would be unable to rely on the direct binding effect of the 
Commission’s decision in that regard, and other, more far-reaching procedural 
requirements for the burden of proof borne by the parties would arise with regard 
to the indirect effects of the cartel – which would be the only effects still 
conceivable in that scenario. 
[34] In this respect, the referring court considers that it would be in the interests 
of procedural economy to clarify the question referred for a preliminary ruling at 
this stage, because, in particular, an economic assessment of possible damage 
caused by the cartel, which may become necessary in the subsequent course of the 
proceedings, would be possible only with considerable procedural effort and at 
considerable expense – and may even require economic expertise. 
[35] The answer to the question referred is also of considerable importance 
beyond the present case. In that respect, the referring court […] notes that it is 
currently seised of a number of cases with similar facts, but in which, in some 
cases, the number of vehicles acquired is significantly higher (sometimes several 
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hundred trucks) and in which a key issue is, as in the present case, whether the 
Commission’s decision of 19 July 2016 has binding effect with regard to refuse 
collection vehicles or other types of special-purpose/specialised vehicles […]. 
[…]. 
[36] […][Or. 11] […] 
[37] 2. [National procedural law] […] 
[38] 3. […]