Legal topics
Procedure regarding additional financing contributions for Stuttgart 21
At the end of 2016, in order to avoid risks under the statute of limitations, we initiated proceedings in the Stuttgart Administrative Court against the project partners seeking additional financing contributions on the basis of what is known as the negotiation clause (2019 Integrated Report). In late August/early September 2020, we received the rejoinders of the project partners. The Administrative Court gave us the opportunity to comment on the rejoinders by December 31, 2020. That deadline was extended to the end of February 2021. We assume that a date for the hearing before the Stuttgart Administrative Court will not take place before the second quarter of 2021.
Civil proceedings on infrastructure utilization fees
A large number of disputes relating to train-path and sta - tion fees are still pending with the civil courts. This concerns the question of whether at all, and according to which standards, the civil courts may subject the regulated fees to a further civil court assessment. According to a judgment of the German Federal Supreme Court (Bundesgerichtshof; BGH) in 2011, rail infrastructure usage fees on the basis of the legal situation before the entry into force of the ERegG could be reviewed by civil courts for their cheapness on the basis of Section 315 of the German Civil Code (BGB), even if they were effective under regulatory law. The European Court of Justice (ECJ) ruled in 2017 that a review of the cheapness of infrastructure charges by civil courts in accordance with Section 315 BGB is incompatible with European railway law. However, the BGH continued to stipulate an antitrust law review by the civil courts. At the end of 2020, the Superior Court of Justice of Berlin submitted questions to the ECJ on the verifiability of regulated rail infrastructure charges by the civil courts based on the antitrust law. A decision by the ECJ is not expected before 2022.
Antitrust topics
Lawsuit by Federal state of Saxony-Anhalt
Federal state of Saxony-Anhalt filed a lawsuit against DB Netz AG, DB Regio AG and DBAG claiming compensation for damages under antitrust law due to allegedly illegal trainpath pricing by DB Netz AG through the levying of regional factors between 2005 and 2011. For its part, DB Regio AG is suing the Federal state of Saxony-Anhalt for the years 2008 to 2014. The District Court of Frankfurt am Main has dismissed the lawsuit of the state of Saxony-Anhalt. The Federal state has appealed against the decision. A decision on the procedure sought by DB Regio AG is pending. Additional information is available in the 2019 Integrated Report.
Procedure of the Federal cartel office for online distribution
In November 2019, the Federal Cartel Office (Bundeskartellamt; BKartA) initiated administrative proceedings against DB Sales, on suspicion of abuse of a dominant position and violation of antitrust laws due to the design of the Web service contracts. The online distributors GoEuro and Trainline are involved in the proceedings as joint partners. As part of these proceedings, the BKartA is examining advertising restrictions (in particular the AdWords regulation) as well as discount restrictions on discounts and coupons in contracts between DB Sales and online sales partners. The BKartA is also focusing on the handling of real-time data by DB Sales and the structuring of sales commissions by DB Sales. In early 2020, the BKartA sent a comprehensive request for information to DB Sales, which was answered promptly in March. In early December 2020, the BKartA also sent an extensive questionnaire with questions about online distribution to several online platforms operating in Germany. It is not yet clear how the proceedings will develop.
Claims for compensation for damages against airlines
DB Group is pursuing compensation for damages against the airlines that were part of the air freight cartel, which, according to the findings of various competition authorities around the world, agreed on kerosene and security surcharges, among other things, from 1999 to at least 2006 at the expense of freight forwarders such as DB Schenker (2019 Integrated Report). The US proceedings have now ended in out-of-court settlements. In addition, out-of-court settlements relating to the proceedings pending in Germany have thus far been concluded with seven airlines. Settlement negotiations are being conducted with one additional airline to settle these proceedings.
Lawsuit against prohibited agreements on gross list prices
In December 2017, DB Group filed an action against DAF, Daimler, Iveco, MAN and Volvo/Renault Groups in the Munich Regional Court for the “truck cartel” (2019 Integrated Report). In addition to its own claims, DB Group is also asserting the claims of the German Armed Forces (Bundeswehr) and of over 40 companies from all areas of the German economy. The claim is seeking compensation for damages totaling about € 500 million (including interest).
