On 29 March 2022, there was a hearing at the district court of Amsterdam in the first group of cases relating to the truck cartel, in which 15 claimants instituted proceedings against DAF, Daimler, Iveco, MAN, Volvo/Renault and Scania. Two interlocutory judgments have already been rendered in the first group. The hearing in March concerned the admissibility of the claimants’ claim and the validity of the assignments, the applicable law and the offer by the trucks manufacturers to provide documents. On 13 July 2022, the District Court will rule on these topics and decide how the proceedings will be continued.

On 28 October 2021, Advocate General Rantos delivered an opinion regarding the same truck cartel.[1] In a case between a Spanish company referred to by the letters RM v. Volvo and DAF Trucks, the Court of Appeal of Léon, Spain had asked the Court of Justice for a ruling on the temporal scope of the Antitrust Damages Directive.[2] Relevant in that context is that the Antitrust Damages Directive distinguishes between substantive provisions that have not been declared retroactively applicable and procedural provisions that are applicable in cases that predate the Directive’s entry into force. Two things were at issue.

In Spain, there is a limitation period of one year for non-contractual liability, whereas Article 10(3) of the 2014 European Antitrust Damages Directive specifies a five-year limitation period for bringing actions for cartel damages. The question is which limitation period applies here. The Advocate General concluded that the five-year limitation period is a substantive provision and does not therefore apply to cases where the facts and fines predate the implementation of the Directive.

Another point of dispute was whether the presumption that a cartel leads to damage in Article 17(2) of the Antitrust Damages Directive applies here. The Advocate General held that this was a procedural provision and that it is therefore also applicable in cases where the facts predate the Directive.

[1] Opinion of Advocate General M. Athanasios Rantos, case C-267/20, 28 October 2021. See also Court of Justice of the European Union Press Release No 193/21: “Truck cartel in Spain: Advocate General Rantos clarifies the temporal scope of the directive on the compensation of victims of anti-competitive practices”, 28 October 2021.

[2] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

On 6 December 2021, members of the Rohingya community of Myanmar filed class action lawsuits in the United States and the United Kingdom against Facebook and its parent company Meta.[1] The plaintiffs argue that Facebook’s negligence amplified a campaign of grave human rights abuses and crimes against humanity against the Muslim minority of Myanmar. In particular, the plaintiffs claim that Facebook used algorithms to amplify hate speech against the Rohingya people, failed to invest in content moderators and fact checkers who spoke Burmese and understood the political situation in Myanmar, failed to remove hate speech, and failed to take appropriate and timely action despite extensive warnings from NGOs and the media from 2014 onwards. In these claims, the lawsuits make reference to the documents leaked by Facebook whistleblower Frances Haugen. The plaintiffs are demanding around €133.1 billion in total damages.

In the US complaint, the plaintiffs seek to apply Myanmar law if Section 230 of the Communication Decency Act is raised as a defence. Section 230 provides that platforms like Facebook cannot be held liable for the content posted by their users. It remains unclear whether the US will hear the claims under foreign law, which happens only in special circumstances.

While legal experts are unsure about the chances of success, due in fact to a lack of precedent, the lawsuit certainly served as a wake-up call for platforms like Facebook.

[1] US Class action complaint against Meta Platforms, Inc. & UK letter of notice regarding class action against Facebook UK

On 8 September 2021, the Amsterdam District Court rendered an interim judgment in the case of claim vehicle CDC Projects 13 SA against the Finnish company Kemira Chemicals OY with regard to the sodium chlorate cartel,[1] which the European Commission established and fined in its decision of 11 June 2008.[2] CDC’s proceedings have been ongoing since 2014, and in the latter judgment the District Court ruled on, among other things, applicable law, joint and several liability and the obligation to contribute.

The parties agree that the applicable law is determined by the production site where the sodium chlorate was delivered. With regard to the joint and several liability and obligation to contribute of companies belonging to the same group, the District Court found that Kemira was the only company held liable and that it has been established that Kemira sold sodium chlorate as a participant in the cartel. According to established CJEU case law, Kemira can be held fully liable there under civil law. In that case, the mutual obligation to contribute is irrelevant to the liability towards CDC, and the District Court dismissed the issues of joint and several liability and the (internal) obligation to contribute as no longer relevant.

The proceedings continued with an exchange of statements on the subjects of “overcharge” and “volume of commerce”, in which the subject of “pass on” can also be discussed.

[1] Amsterdam District Court 8 September 2021, ECLI:NL:RBAMS:2021:4933.

[2] Commission Decision of 11 June 2008, COMP/38.695 (Sodium Chlorate).

On 6 July 2021, the Amsterdam Court of Appeal rendered an interim judgment in the Air Cargo proceedings regarding the question of applicable law.[1] The proceedings were initiated by KLM, British Airways and Lufthansa and other airlines against the Dutch claim vehicles Equilib Netherlands B.V. and Stichting Cartel Compensation and concerned in particular the status of the cartel decision and the law applicable to the claims.

First of all, the Court of Appeal held that it could rely on the facts established by the European Commission in the cartel decision, even if an appeal is pending against this decision.

As far as applicable law is concerned, the Court of Appeal decided that Article 4 of the Unlawful Act (Conflict of Laws) Act (Wet conflictenrecht onrechtmatige daad “WCOD”) offers the relevant legal framework. The Court of Appeal found that, in principle, the law of the state of the airport of departure is applicable to each individual claim of each individual shipper per flight.

The Court of Appeal went on to note that this outcome would lead to a strong fragmentation of the applicable law. Strict application of Article 4 WCOD would lead to dozens of different applicable legal systems. In order to prevent this fragmentation, the Court of Appeal ruled first that the individual claims of each shipper must be considered as a whole, analogous to the concept of ‘a single continuous infringement’ as applied by the Commission in its cartel decision. Secondly, the Court of Appeal found that not only the airport of departure, but also the airport of arrival is relevant to the determination of the applicable law. The scope of Article 4 WCOD is not limited to the place where competition is directly harmed by the anti-competitive conduct, but also includes the place that has been affected indirectly (for example in case of umbrella damage).

As also confirmed by the Commission in its cartel decision,[2] the Aircargo cartel led to the restriction of competition in several places. The Court of Appeal ruled that, as a result, the claim of a single shipper is already governed by various applicable legal systems. The WCOD does not provide a solution for such a case. In order to fill this loophole in the legislation, the Court of Appeal found guidance in established (EU) principles, such as legal certainty and effectiveness. The Court of Appeal noted that the EU legislature provided for this issue in Article 6(3)(b) of Regulation (EC) No 864/2007 (also referred to as ‘Rome II’), in which the claimants are given the opportunity to choose the applicable law themselves under strict conditions.

Since the claimants in this case (Equilib and SCC) had requested the applicability of Dutch law, the Court of Appeal concluded that the claimants’ claims for damages are governed by Dutch law. This applies to claims relating to flights falling within the scope of the cartel decision (flights that have their departure and/or arrival within the EEA and Switzerland).

[1] Amsterdam Court of Appeal 6 July 2021, ECLI:NL:GHAMS:2021:1940.

[2] See the Commission’s press release of 17 March 2017: Antitrust: Commission re-adopts decision and fines air cargo carriers € 776 million for price-fixing cartel.

On 6 May 2021, Advocate General Michal Bobek issued an Opinion in one of the cases concerning the air cargo cartel.[1] The Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands instituted proceedings against British Airways, KLM and other airlines after the European Commission established in 2010 that the airlines had made prohibited price agreements with regard to cargo shipments prices. The AG’s Opinion pertained in particular to the question of whether damage could also be claimed for the period prior to 2004, when important competition law came into force. According to the airlines, Articles 104 and 105 TFEU would result in the national courts not having jurisdiction to rule on antitrust damages cases from that period. Advocate General Bobek did not concur with this and thus concluded that national courts could also rule on antitrust damages claims dating from before 2004.

[1]              Advocate General M. Bobek, 6 May 2021, case C-819/19 (Stichting Cartel Compensation and Equilip Netherlands/KLM et al.)

On 21 January 2021 MLex reported that British Airways, KLM and other airlines attended a hearing before the Court of Justice with two Dutch litigation vehicles, Stichting Cartel Compensation and Equilib Netherlands.[1] This case concerned the air cargo cartel for which the European Commission had imposed fines on the airlines in 2010. Now, in 2021, the question was whether the Amsterdam District Court could also adjudicate damage that, in brief, had arisen before the entry into force of Regulation (EC) No. 1/2003.[2] The English court had already ruled that such damage must be disregarded, but the Amsterdam District Court had held that it had to have independent jurisdiction to adjudicate matters from that period in the interest of promoting legal certainty. Advocate General Michal Bobek announced he would deliver his non-binding opinion on 13 April 2021. The court will then study that opinion and issue a ruling at a later date, MLex reported.

[1]               A. Boyce, “Airlines, litigation vehicles scrap over Dutch court’s ‘competence’ for cartel claims at Top EU court’, 21 January 2021. It regards case number C-819/19 (Stichting Cartel compensation and Others).

[2]              Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

On 17 December 2020, the Advocate General’s opinion was published in case C-709/19, in which the Supreme Court put preliminary questions to the European Court of Justice on jurisdiction in class actions pursuant to the Brussels I Regulation (Recast). ^[1]Opinion of the Advocate General Campos Sanchéz-Bordona 17 December 2020, Case C-709/19. The underlying case pertains to a claim by the Dutch Association of Stockholders (VEB) about a decrease in the value of BP shares due to alleged deceit by BP regarding to an oil leak in the Gulf of Mexico. The District Court and the Court of Appeal had held earlier that the Dutch court does not have jurisdiction, as BP has its registered office in the United Kingdom.

The Advocate General’s response was that the place where the investment account is held does not provide a sufficient basis for the international jurisdiction of the Member State concerned without additional circumstances. The Advocate General also discussed other circumstances (such as consumers being included within those represented, and a settlement from a third country) which, in his opinion, likewise did not constitute special circumstances.

The Supreme Court had also asked whether the rules of jurisdiction should be applied differently (in other words: less strictly) in cases in which the VEB institutes a class action. According to the Supreme Court, the effectiveness of the class action mechanism would be lost if the VEB had to lodge a claim at every place where damage occurred. In the Advocate General’s view, the rules of jurisdiction in Article 7(2) of the Brussels I Regulation (Recast) should not be applied differently even in the case of a class action by the VEB. Although the Advocate General acknowledged the risk identified by the Supreme Court, he took the view that the regime under the Regulation offered no other option. The Advocate General’s response on this point is in line with the CDC judgment (C-352/13, EU:C:2015:335), in which the Court of Justice did not accept that transfer and bundling of claims could affect the determination of international jurisdiction.

On 25 November 2020, the Amsterdam District Court rendered an interlocutory judgment in a case between four government bodies in the Gulf States of Bahrain, Saudi Arabia, Kuwait and Oman ^[1]Electricity & Water Authority of the government of Bahrain (Bahrain), GCC Interconnection Authority (Saudi Arabia), Kuwait Ministry of Electricity and Water (Kuwait) and Oman Electricity … Continue reading on the one hand and 15 legal entities involved in groups of Prysmian, ^[2]The defendants are Prysmian Netherlands B.V., Draka Holding B.V., and Prysmian Cavi e Sistemi S.R.L ABB, ^[3]The defendants are ABB B.V., ABB Holdings B.V., ABB AB, and ABB Ltd. Pirelli,^[4]The defendant is Pirelli & C S.p.A. Goldman Sachs ^[5]The defendant is The Goldman Sachs Group, Inc. and Nexans ^[6]The defendants are Nexans Nederland B.V., Nexans Cabling Solutions B.V., Nexans Participations S.A., Nexans S>A. and Nexans Franse S.A.S. on the other. ^[7]Amsterdam District Court 25 November 2020, ECLI:NL:RBAMS:2020:5882.

The backdrop is the power cable cartel whose existence was established by the European Commission in 2014. ^[8]Decision of the European Commission of 2 April 2014 in case AT.39610 (‘Power Cables’). The European Commission established that European, Japanese and South Korean manufacturers of underground and submarine power cables had divided power cable projects between themselves between 18 February 1999 and 29 January 2009. The defendants are (indirectly) connected to the addressees of the Commission decision.

The claimants of the Gulf States are seeking a declaratory judgment that the defendants acted unlawfully because they participated in the cartel, or that the knowledge of the parent companies addressed must be imputed to them. In separate ancillary actions, the defendants are seeking that the District Court decline jurisdiction.

The District Court partially concurred with the defendants in this respect. It held that, although it had jurisdiction to rule with regard to the Dutch defendants, this was not the case for the foreign defendants. Nor could the Dutch defendants serve as anchor defendants. The first requirement of a sufficiently close connection between the claims had not been satisfied. The mere fact that the Dutch defendants are (indirectly) connected with the addressees of the decision did not mean that they were also involved in the infringement under competition law or that parent companies’ liability could be imputed to them. The District Court therefore deemed itself to lack jurisdiction with regard to the foreign defendants.