Cartel of Trucks – The Milan Court Orders the Renewal of the Expert Technical Consultation (CTU) that had Estimated Damages at 2 percent of the Purchase Price

On March 25, the Court of Milan’s Specialized Business Section partially ruled on a compensation claim made by a transport company for damages resulting from Iveco’s participation in a cartel that was sanctioned by the European Commission in 2016. Specifically, the plaintiff complained about the application of a surcharge on the Iveco vehicles it purchased due to anti-competitive practices carried out between 1997 and 2011.

The Role of the CTU: Expert Consultation as a Key Tool for Quantifying Damages

A crucial element of the proceedings was the use of the Expert Technical Consultation (CTU) to assess whether the surcharge claimed by the plaintiff was indeed attributable to the anti-competitive agreement sanctioned by the European Commission and to determine its amount. The court-appointed expert had the task of reviewing the documentation provided by the parties and responding to questions regarding the possible surcharge and the so-called "passing-on," i.e., whether the plaintiff had passed on the surcharge to its end customers.
The CTU estimated the surcharge caused by the cartel on an equitable basis, setting it at 4% of the price paid for the trucks. Additionally, the expert suggested that the plaintiff might have passed on part of the surcharge to its customers, with a transfer estimate of 50%. This would potentially reduce the actual damages to 2%.

Explanation of the CTU (Expert Technical Consultation)

In Italian legal proceedings, the Consulenza Tecnica d’Ufficio (CTU), or Expert Technical Consultation, is an expert opinion requested by the court to assist in making a decision on highly technical matters. A court-appointed expert, the Consulente Tecnico d’Ufficio, is brought in to provide a specialized assessment, especially in cases involving complex subjects such as engineering, medicine, or economics. The CTU’s role is crucial when the judge lacks the technical knowledge necessary to make a ruling.
In this case, the CTU was used to assess the economic damages resulting from a cartel violation. The parties involved may also appoint their own experts, called Consulenti Tecnici di Parte (CTP), to challenge or support the findings of the CTU. However, the CTU’s evaluation plays a significant role in guiding the court’s decision.

The Court’s Assessment of the CTU

The Court expressed significant reservations about the CTU’s work, noting shortcomings in the depth and thoroughness of the data collection necessary to provide a comprehensive answer to the questions. Despite acknowledging the difficulties faced by the CTU due to the lack of data, the Court held that the expert should have better addressed the problem of missing documentation. Specifically, the CTU should have:
•Reported the lack of documentation to the judge before answering the questions.
•Requested additional data or suggested that the judge order the parties to present further necessary documents to complete the analysis.
The Court also noted that some fundamental facts, such as the plaintiff’s purchase of the vehicles and the corresponding payments, had not been contested by Iveco. This led to criticism of the CTU for not adequately considering the principle of "non-contestation" under Article 115 of the Italian Code of Civil Procedure, which states that facts not contested by the parties do not require further proof.

The Court’s Decision: The Need for CTU Renewal

Given these shortcomings, the Court decided to refer the case back to the evidentiary phase to allow for the renewal of the CTU. Consequently, the proceedings continued with the replacement of the expert and the appointment of a university professor in economics. The judge requested that the missing points, particularly regarding the quantification of the damages, be clarified and invited the CTU to use more comprehensive comparative methods and, if necessary, obtain further data or information.
In conclusion, while recognizing the value of the CTU as a tool for technical analysis, the Court found that the expert’s work was insufficient to resolve all the issues in the case. It thus ordered the renewal of the expert’s operations to ensure that the final judgment could be based on a clear and complete evaluation of the available evidence.

Conclusions

The judgment of the Court of Milan is an example of how the Expert Technical Consultation (CTU) is a crucial tool in complex antitrust and damage compensation proceedings, but it also underscores the importance of proper handling of evidence and data. The equitable estimate proposed by the CTU was not considered useful for resolving the case. The CTU must analyze the data and information provided by the parties, apply correct technical criteria, and, if possible, quantify the damage based on these elements. In the absence of documents or concrete evidence, the CTU may offer hypothetical assessments, but it is not the role of the CTU to proceed with an equitable estimation of damages.