BVMW and ELVIS See SMEs Threatened by Legislative Amendment

The BVMW – Federal Association of Small and Medium-Sized Enterprises, Entrepreneurs’ Association of Germany e.V. and the E.L.V.I.S. European Cargo Alliance of International Forwarders AG are opposing recommendations from the German Federal Council regarding antitrust law. There are fears that this will hinder the enforcement of the legitimate interests of many small and medium-sized forwarders against the truck cartel.

(Alzenau) The European Cargo Alliance of International Forwarders AG, or ELVIS, and the Federal Association of Small and Medium-Sized Enterprises, Entrepreneurs’ Association of Germany e.V. (BVMW) are vehemently opposing recommendations from the German Federal Council concerning the planned amendment of the Legal Services Act (RDG). This would severely hinder medium-sized companies in jointly enforcing their rights. Specifically, the Federal Council recommends excluding antitrust services from the scope of the RDG. The association and the alliance fear that this will make it impossible to enforce the legitimate interests of many small and medium-sized forwarders against the truck cartel.

Enforcement in Antitrust Law Often Disproportionate

“The proposed regulation goes far beyond the goal of improving consumer protection,” warns antitrust law expert Prof. Dr. Moritz Lorenz, lawyer and partner at the Berlin law firm Arnecke Sibeth Dabelstein. Lorenz represents numerous partner companies of ELVIS AG in damage claims against the so-called truck cartel.

In antitrust law, individual enforcement is often disproportionately burdensome. Since class actions are not permitted, a construct is usually employed in this country where the injured parties assign their claims to a third party, which consolidates them and ultimately asserts them in court. These are mostly companies equipped with a debt collection license. “If the states were to succeed in their intention to fundamentally prohibit debt collection services in the field of antitrust law, it would be de facto impossible for medium-sized companies to jointly pursue their rights,” explains Lorenz.

Creating Facts Quietly and Secretly

With sharp criticism, the BVMW also reacts to the Federal Council’s initiative. Under the guise of consumer protection, facts are being quietly and secretly created that ultimately massively disadvantage and even harm small and medium-sized enterprises. It is also incomprehensible that the Federal Council explicitly justifies its amendment recommendation with the particularly high complexity of the legal field. Lorenz: “It is already planned to check the qualification of a legal service provider as part of their registration. If the qualification is not sufficient for work in complex legal fields, registration can be denied.” Therefore, a catalog of prohibited legal fields is not necessary at all.

Litigation Financier Assumes Costs Against Success Fee

Background: The European Commission has determined that the truck manufacturers Daimler, MAN, Volvo/Renault, Iveco, and Scania violated European competition rules from 1997 to 2011 and subsequently imposed fines totaling 3.8 billion euros. ELVIS AG believes that many small and medium-sized transport companies have suffered damage due to the manufacturers’ prohibited agreements, which must be compensated. For this purpose, the alliance has consolidated the claims of its partner companies and other forwarders in the specially established Themis Schaden GmbH, which asserts them before the Stuttgart Regional Court. Overall, Themis is claiming damages of 334 million euros from the truck manufacturers.

The Themis Schaden GmbH not only takes over the entire claims management, but also assumes the cost risk for those affected. The financing is provided by a litigation financier, who in return receives a success fee based on the amount of the damages.Image Caption: / Prof. Dr. Moritz Lorenz represents ELVIS AG against the so-called truck cartel. (Photo: Arnecke Sibeth Dabelstein)