Opinion of AG Szpunar on the validity of antitrust claims assignment

On 19 September 2024 AG Szpunar has issued his opinion in ASG 2, Case C-253/23, concerning a preliminary ruling on antitrust damages claims assignment.?

The case was initiated by ASG 2, a legal services provider licensed under German law, which had been assigned claims by 32 sawmills based in Germany, Belgium, and Luxembourg. The claims relate to damages from a cartel involving the coordination of roundwood prices by North Rhine-Westphalia, allegedly violating Article 101 TFEU.? In the context of the domestic litigation, the Dortmund Regional Court requested a preliminary ruling to the CJEU concerning the validity of the claim assignment model used in competition damages claims, in particular regarding whether the prohibition of the collective assignment of claims to a licensed legal services provider for group litigation under German law is consistent with EU competition law and the EU Damages Directive.

?Under German law as construed by the lower courts (the Bundesgerichtshof - German Federal Court of Justice - not yet having decided on the issue), the assignment of antitrust damages claims for group or mass litigation is prohibited on the grounds that antitrust damages cases are too complex.

In its opinion, AG Szpunar remarks that, despite Member States having procedural autonomy, the same is limited by EU law, particularly by the principle of effectiveness. ?This means that national procedural rules must not make it "practically impossible or excessively difficult" to exercise EU rights, such as claiming compensation for antitrust infringements.?

The principle of effectiveness requires that national measures on claims for damages must not impose obstacles that would prevent victims from asserting their rights under EU competition law. ?Similarly, Article 47 of the EU Charter of Fundamental Rights ensures the right to an effective remedy and fair trial. ?A prohibition that prevents or significantly limits the ability of victims to pursue collective claims through a legal services provider would undermine these principles.? The prohibition also fails to meet the proportionality test, as less restrictive measures could achieve the same protective goals without undermining the principle of effective judicial protection (for instance, regulating the qualifications required from legal service providers in antitrust cases).

The AG states that assigning claims to a third party, such as a licensed legal services provider, is a legitimate means of exercising the right to compensation. ?The ability to assign claims facilitates access to justice for parties who may otherwise be unable or unwilling to individually pursue complex and costly litigation. ?Thus, the assignment model allows a legal services provider to consolidate claims and pursue them on behalf of multiple victims, thereby reducing the individual burden on claimants.? This is particularly relevant for small businesses like the sawmills involved in this case, which are businesses often lacking the resources and legal expertise to bring stand-alone antitrust claims on their own.

The rationale of the case appears potentially far reaching and may be invoked in jurisdictions (such as Spain) where assignment of claims has remained a question mark and there was little legal certainty around it for technical reasons.? The same goes for consumer and mass claims, which may also benefit from the rationale of this judgement.

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