Process in Düsseldorf: Dispute with Thyssenkrupp: Ruhrbahn insists on compensation

Among other things, Thyssenkrupp was part of a rail cartel. Is the Essen Ruhrbahn therefore entitled to compensation? A court decides.

A good decade after the discovery of a rail cartel – including Thyssenkrupp and the British company Balfour Beatty – the Düsseldorf Higher Regional Court has dealt with the question of whether the Cologne transport company (KVB) and the Essen Ruhrbahn (then EVAG) should receive compensation. According to their own statements, the people of Essen had invested around 12 million euros in new construction and repair of the railway lines between 2002 and 2012. “Of course, it is still important to us to get back overpaid money,” said Ruhrbahn spokeswoman Sylvia Neumann on request. A decision may not be made until next year.

In the rail cartel, a large number of railway technology producers spoke to each other in the period 2001 to 2011. Employees decided secretly who should win which tender. Other cartelists only pretended to take part in procurement procedures and made overpriced offers, as the presiding judge Ulrich Egger reported on Tuesday, looking back at the time. Offers were also deliberately submitted too late – just to give the impression that there was competition.

Legal dispute with producers such as Thyssenkrupp: KVB and Ruhrbahn estimate damage at 2.1 million euros

At that time, the Cartel Office imposed fines totaling 97 million euros. The fines have long been final. However, the question remains open as to whether and what the cartel members have to pay to their former customers as compensation in addition to the fine.

The KVB and the Ruhrbahn estimate that they paid 25 percent more than they would have done without the cartel. With this calculation they come to a damage of 2.1 million euros. A judgment could have a certain signal effect for other proceedings on the same rail cartel that are also pending at the Higher Regional Court.

However, the issue of damages in antitrust cases is a tricky one. It is relatively easy to determine that there was a cartel. It is much more difficult to answer the question of how much more money the cartel members’ customers had to pay. Especially since the injured parties usually pass on higher prices to their end customers – in this case all commuters and other local transport users.

Balfour Beatty’s lawyer surprises with statements

At a hearing on Tuesday, however, it became clear that the former cartel members are in a difficult position. “We still have our problems with the factual presentation,” said Judge Egger, referring to the defendant’s argument, according to which the plaintiffs had not suffered any financial damage.

Also read about this: Rail cartel scandal spreads

A lawyer for Balfour Beatty surprised the judges by saying that the price for points was not higher because of the cartel, but lower. Because you could be sure of getting an order even before the official award, the companies were able to better utilize their plants and produce for the spring when orders were weak in winter.

If the orders had not been certain, there would have been a lull in production in the winter and certain plants would have had to be closed even then. This would have increased the market price. The switch factory of his client Schreck-Mieves – the company was taken over by Balfour Beatty in 2008 – has never made a profit, so it was not about extra profits, according to the lawyer.

The presiding judge frowned. So the lawyer wanted to say, “the more ailing, insolvent companies I have on the market, the more advantages would a cartel have?” Such an understanding is “incompatible with market economy,” said the judge.

Protracted dispute – next court date on December 14th

The next court date is scheduled for December 14. “Should a court expert be called in, the proceedings will drag on into the next year,” said Ruhrbahn spokeswoman Neumann on Tuesday. The protracted legal dispute has already gone through the instances, and in 2020 the Federal Court of Justice referred the matter back to Düsseldorf.

The city of Dortmund was originally the third plaintiff in the OLG pilot case. However, the municipality concluded short-term settlements with defendants and therefore dropped out of the proceedings. While the city of Dortmund has not yet responded to inquiries, the KVB does not want to comment on the ongoing legal proceedings. “We will continue to be part of the process,” emphasizes the Ruhrbahn. (dpa/ulf)

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