In addition to jurisdiction, the Netherlands saw two other relevant developments.

SCC and Equilib / air cargo services

On 24 May, the Amsterdam District Court rendered an interlocutory judgment in the airfreight cartel proceedings that have been ongoing for a number of years between Stichting Cartel Compensation and Equilib Nederlands B.V. on the one hand and KLM and 9 other airlines[1] on the other.[2] The claimants lodged claims for damages from shippers that suffered losses caused by the airfreight cartel established by the European Commission in 2011.

In an earlier interlocutory judgment and during an earlier hearing, the District Court had decided that the claimants had the obligation to assert and substantiate for each underlying party that it purchased at least one airfreight service during the relevant period. The underlying parties for whom that is not the case should be removed from the proceedings due to a lack of substantiation.

In this interlocutory judgment, the District Court maintained this obligation, despite objections from SCC and Equilib in later procedural documents. The District Court added that SCC and Equilib did not have to substantiate for each assignor on the basis of direct source evidence (consisting of an air waybill or invoice) that said assignor purchased at least one airfreight transport service in the relevant period. The District Court understood that the underlying parties would not have or no longer have direct source evidence of all airfreight transport services. However, the substantiation must be ‘sufficiently specific’ and general assertions or statements that it goes without saying that an underlying party purchased airfreight services are not. Lastly, the District Court found that, according to established case law of the Supreme Court, referring to documents/data without indicating which (passages in those) documents / which data exactly are involved was also insufficient (even if this was done in witness statements).

The District Court then discussed for each claimant which underlying parties did and did not provide sufficient specific substantiation and why certain information was not sufficient. With regard to a large number of underlying parties, the court held that the claimant did “enter a large number of documents/data into evidence, but failed to indicate which (passages in those) documents / which data pertain to which airfreight service(s) and of which […] company or companies”. As a result, a large number of underlying parties were no longer involved in the proceedings. The District Court allowed an interim appeal.

[1] This concerns Koninklijke Luchtvaartmaatschappij N.V., Martinair Holland N.V., Société Air France S.A., Singapore Airlines Cargo PTE LTD, Singapore Airlines Limited, Lufthansa Cargo A.G., Deutsche Lufthansa A.G., Swiss International Air Lines A.G., British Airways PLC, Air Canada, Cathay Pacific Airways Limited, SAS A.B., Scandinavian Airlines System Denmark-Norway-Sweden and SAS Cargo Group A/S.

[2] Amsterdam District Court 24 May 2023, ECLI:NL:RBAMS:2023:3450 (SCC and Equilib/KLM et al.)

Wolfson

On 31 May, the Amsterdam District Court ruled on its jurisdiction without questions for a preliminary ruling. These proceedings were initiated by Wolfson Capital Ltd (“Wolfson“) which sought damages on behalf of those it represents from Google Netherlands B.V., Google LLC and Alphabet Inc. (“Google“) for abuse of a dominant position regarding price comparison websites, for which Google LLC and Alphabet Inc. were fined by the Commission.[1]

According to Wolfson, based on the findings in Sumal, Google Netherlands could be used as an anchor defendant because it was part of the same company as Google and Alphabet and was therefore also jointly and severally liable for the infringement. This satisfies the requirement of ‘connection’ as required on the basis of Article 7 DCCP (the Dutch equivalent of Article 8(1) of Brussels I Regulation Recast). Google asserted that, on the basis of substantive law, the Dutch subsidiary could not be held liable for damage for the infringement of competition law, thereby removing jurisdiction vis-à-vis the American parties.

The Dutch court did not concur with that defence. The court went through the requirements for liability of Google Netherlands and found that it could be prima facie assumed that Google Netherlands was jointly and severally liable for the damage, and that this thus also established jurisdiction. The proceedings were to be continued with a substantive discussion of the claim seeking liability. This judge (mr. Jongeneel) at the Amsterdam District Court thus chose a diametrically different position than the judges of the Amsterdam District Court in the FX judgment (mr. Purcell, mr. Messers and mr. Kruis).

[1] Amsterdam District Court 31 May 2023, ECLI:NL:RBAMS:2023:3441 (Wolfson/Google).

Stichting Claim Gran Petro

On 17 May, the District Court of The Hague found that it did not have full jurisdiction in a case brought by the Dutch Stichting Claim Gran Petro against Royal Dutch Shell, Shell Brazil Holding B.V. and Raizen S.A. with regard to a violation of competition law established by the Brazilian competition authority.[1] The District Court found that it lacked jurisdiction to rule on a claim against the Brazilian company Raizen S.A., due to the absence of a ‘connection’ of the claims against Raizen and the claim of the Dutch anchor defendant as required pursuant to Article 7 DCCP (the equivalent of 8(1) Brussels I Regulation Recast). The District Court held that it is insufficiently plausible that the Dutch anchor defendant was also involved in the infringement of Brazilian competition law and that it had been insufficiently established that the Dutch company could be liable under Brazilian law if it were part of the same undertaking. The proceedings against the Dutch and English companies could, however, be continued.

[1] District Court of The Hague 17 May 2023, ECLI:NL:RBDHA:2023:7099 (Stichting Claim Gran Petro/Raizen et al.).

Power cables cartel and cardboard cartel

On 25 April, the Amsterdam Court of Appeal announced similar questions to the Court of Justice for a preliminary ruling in two cartel damages proceedings. In the first case, a number of Gulf State utility companies are seeking damages in connection with the power cable cartel.[1] In the second case, Unilever is seeking damages following a decision by the Italian competition authority with regard to a cartel on the Italian cardboard market.[2] In both cases, the foreign parent companies were fined by the competition authorities, but not their Dutch subsidiaries. The question was whether the Dutch companies could serve as anchor defendants for the foreign companies on the basis of 8(1) Brussels I Regulation Recast.

The Amsterdam Court of Appeal intends to ask detailed questions about the application of Article 8(1) of the Brussels I Regulation Recast with regard to:

• the existence of a “close connection” between the claim against a fined foreign parent company and the claim against a non-addressed subsidiary established in the Netherlands,
• the interpretation and application of the term ‘undertaking’ under competition law,
• the relevance of the eligibility for award of the claims against the anchor defendants when a ruling on jurisdiction is given,
• the right to damages for legal entities established outside the EEA,
• the possibility of the existence of several anchor defendants and
• the possibility of referring to another competent court within one Member State.

The parties can now comment on these questions.

[1] Amsterdam Court of Appeal 25 April 2023, ECLI:NL:GHAMS:2023:961 (EWG/Prysmian).

[2] Amsterdam Court of Appeal 25 April 2023, ECLI:NL:GHAMS:2023:957 (Smurfit Kappa Europe B.V./DS Smith Italy B.V.).

In the past six months, the Netherlands focused almost entirely on jurisdiction of the Dutch court

• On 29 March, the Amsterdam District Court ruled in the class action case initiated bySichting FX Claims against a large number of banks, including NatWest Group and the Dutch company NatWest N.V., MUFG Bank, UBS, JP Morgan,Citibank and Barclays, with regard to the Euribor cartel.[1] The question was whether the Dutch court had jurisdiction to rule on claims for damages against not only the Dutch NetWest N.V., but also its foreign parent company that was an addressee of the decision, and the other foreign companies that are addressees. In doing so, Stichting FX Claims based itself on the judgments in Sumal[2] and ENEL[3], in which the Court of Justice accepted liability of a subsidiary for an infringement for which (only) the parent company was fined by a competition authority if (in summary) the subsidiary belongs to the same ‘undertaking’ as the fined parent company. According to Stichting FX Claims, this means that it can lodge actions against both the fined parent companies and NatWest’s Dutch subsidiary and that the Dutch court has jurisdiction to assess those actions on the basis of Article 7 of the Dutch Code of Civil Procedure, or DCCP. After all, this means that there is “a sufficient connection” between the claims against the Dutch company (the anchor defendant) and those against the foreign fined companies that the proper administration of justice requires that the claims be heard jointly.

The District Court does not concur with this. In the Court’s opinion, the fact that NatWest N.V. is the only Dutch defendant, but is also the only one of all the defendants that is not an addressee of the European Commission’s decision creates “the impression that the Stichting only summoned Natwest NV because of its place of establishment, in an attempt to thus create jurisdiction before the Dutch court with regard to the Banks.” Furthermore, the District Court does not give a substantive assessment of the defendants’ liability under competition law, but concludes that the factual and legal situation is not the same and finds that it has no jurisdiction to rule on the actions against the foreign defendants on the basis of Article 7 of the DCCP. The Stichting lodged an appeal against this judgment.

[1] Amsterdam District Court 29 March 2023, ECLI:NL:RBAMS:2023:1789 (Stichting FX Claim / NatWest et al.).

[2] CJEU 6 October 2021, ECLI:EU:C:2021:800 (Sumal).

[3] CJEU 12 May 2022, ECLI:EU:C:2022:379 (Enel).

On 29 June 2022 it was announced that the CAT allowed proceedings between Dr Rachael Kent and Apple Inc. and Apple Distribution International Ltd regarding the prices charged by Apple in its App store.[1] Ms Kent was a proposed representative for all the aggrieved parties of Apple and claimed that Apple was infringing competition law by obtaining 30% income from app developers in exchange for placement in its app store. She requested permission to initiate an opt-out class action, known in England as a collective procedure order (CPO). Although Apple opposed this, the CAT unanimously decided that the subject was sufficiently important to allow these proceedings, but what exactly the proceedings were about would be assessed later. The next discussion was whether her CPO actually met the statutory requirements.

[1] Competition Appeal Tribunal, 29 June 2022, case 1403/7/7/21 (Kent/Apple).

On 13 May 2022, the CAT ruled on a request for appeal by Mastercard Inc in a class action case initiated by Walter Hugh Merricks CBE in connection with the MIFs cartel established by the European Commission in 2007.[1] Merricks had summoned Mastercard on 6 September 2016 on behalf of all of Mastercard’s surviving aggrieved parties, an opt-out case. MasterCard defended itself by asserting that the class action could not or could no longer pertain to people who died after that date. The CAT had rejected this defence in March 2022 and now decided on 16 May 2022 that no appeal could be lodged against that ruling. However, Mastercard could still lodge an objection directly with the appeal court because of the legal issue at hand. Mlex reported on 18 May 2022 that Mastercard had announced that it would lodge an objection.[2]

[1] Competition Appeal Tribunal 13 May 2022, case 1266/7/7/16 (Merricks/Mastercard).

[2] MLex, ‘Mastercard to fight on at appeal court over scope of UK class action’, 18 May 2022.

On 6 May 2022, the Court of Appeal ruled on an appeal of BT Group[1] against the CAT’s 27 September 2021 judgement by which it certified Le Patourel’s proposed damages claim as eligible for collective (class) proceedings upon an opt-out basis.[2] Le Patourel, as second class representative, alleges that BT Group has abused its dominant position in the market for voice only telephony by charging customers supra-competitive prices to customers.

BT Group appealed to the certification of the proposed claim and argued that if the claim were to be certified, it should proceed upon an opt-in basis, instead of opt-out. Opt-in would require any person wishing to benefit from the claims to, deliberately, join the claim at the outset. An opt-out claim, on the other hand, automatically includes all members of a defined class except those that choose to opt-out. The reason the CAT deciding on opt-out had to do with the fact that customers of voice-only services are often elderly and vulnerable and would not easily be inspired to sign up also given the limited award in the end (around 140 pounds).

BT Group argued in an appeal however, that the applicable rules expressed a general preference for opt-in “where practicable”. According to BT Group, it would be practicable to get the proposed class to opt-in because it would be possible to identify and contact BT customers based on customer records held by BT.

The Court of Appeal dismissed the appeal. Later, the court will further rule on whether to grant BT permission to submit an appeal against the CAT’s certification of the claim.

[1] The entities summoned are BT Group PLC and British Telecommunications PLC.

[2] Court of Appeal (Civil Division), [2022] EWCA Civ 593, Case No: CA-2021-000748 (formerly C3/2021/1632).

On 28 April 2022, the Landgericht Stuttgart denied a claim from Themis Schaden GmbH, a German claim vehicle, against Daimler in a class action relating to the truck cartel.[1] Themis Schaden claimed for around 350 underlying freight forwarders an amount of approximately EUR 96 million in damage in connection with the truck cartel established by the European Commission in 2016 and 2017. However, the court did not award the claim. It concurred with Daimler’s defence that Themis Schaden had no claim because the assignment agreements were invalid. Under German law, claim vehicles and their assignment agreements must comply with the Rechtsdienstleistungsgesetz, the law that prescribes rules for claim vehicles. The court ruled that the assignment agreements used by Themis Schaden did not comply with said law. The court also held that the claimant’s assignment model ignored the limits of its licence for class actions and that the assignment model boiled down to an unsolvable conflict of interest for the claimant.

[1] Press release of Landgericht Stuttgart 28 April 2022, ‘Urteil der 30. Zivilkammer zum Lkw-Kartell’.

On 22 June 2022, the Amsterdam District Court rendered judgment in a class action against Mercedes et al.[1] These proceedings have been instituted by three different foundations that want to be the exclusive representative. In this dispute, the foundations are claiming, inter alia, damages from Mercedes et al. because they manufactured and sold diesel cars with cheating software. In this judgment, the District Court rendered a decision on jurisdiction and the applicability of the WAMCA.

Firstly, the District Court declared the Stichting Emission Claim, one of the three foundations, inadmissible because it did not issue its summons within the statutory period and also did not request a postponement.

The District Court then discussed its jurisdiction. Not all claims of the foundations have been lodged against all the defendants for the benefit of the same group of persons whose interests the foundations represent. According to the District Court, this affects the assessment of jurisdiction, which is why it distinguishes between persons who purchased a vehicle in the Netherlands and persons who purchased a vehicle in another country of the European Union. The dealers and the importer are all domiciled in the Netherlands, the claim lodged against them that serves to protect similar interests of persons residing in the Netherlands who purchased a vehicle in the Netherlands is therefore not of an international nature. The Dutch court has jurisdiction with regard to that claim. Pursuant to Article 4(1) of the Brussels I Regulation Recast, the court has jurisdiction with regard to the claim for the benefit of buyers who do not reside in the Netherlands and who purchased their vehicle from a Dutch dealer. The Dutch court also has jurisdiction with regard to the car manufacturers in so far as the vehicle was purchased in the Netherlands, which jurisdiction can be derived from Article 7(2) Brussels I Regulation Recast (erfolgsort).

According to the District Court, no jurisdiction can be derived with regard to the claim aimed at protecting the similar interests of persons who purchased a vehicle in another country of the European Union. With regard to that claim, the District Court found that it had no jurisdiction on the basis of Article 8(1) Brussels I Regulation Recast due to a lack of a sufficiently close connection. Nor can jurisdiction with regard to that claim be derived from Article 7(2) Brussels I Regulation Recast; the place of the act (handlungsort) and the place where the damage occurred (erfolgsort) is not located in the Netherlands, according to the District Court.

The District Court subsequently gave an opinion on the applicability of the WAMCA. The WAMCA applies if the claim is lodged after 1 January 2020 and the harmful event or events occurred on or after 15 November 2016. The District Court finds that the initial, common and essential harmful event to which the legal claim and the proceedings pertain is, in this case, the putting in place of the illegal manipulation tool. That is why, according to the District Court, Article 3:305a (old) DCC applies in this case.

[1] Amsterdam District Court 22 June 2022, ECLI:NL:RBAMS:2022:3586