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 22 April 2021, another truck cartel Opinion was issued by an Advocate General at the Court of Justice. This time, it concerned the case RH (name kept anonymous) v. Volvo AB, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB and Volvo Group España SA (“Volvo”), which had been instituted before the Madrid Commercial Court.[1] Acting Advocate General J. Richard de la Tour considered a question of jurisdiction put by the Commercial Court. Volvo took the position that the Madrid Commercial Court did not have jurisdiction to handle the antitrust damages case because “the place where the harmful event occurred or may occur” from Article 7(2) of Brussels I Regulation Recast[2] was not within that Court’s district. According to Volvo, the place in question was the place where the competition arrangements for trucks were established (i.e. where the cartel agreements were made), and that was not in Spain. The claimant had asserted that the place where its registered office was located, within the district of Madrid, could also be considered as such.

The Advocate General concluded that the place where the affected market is located falls under Article 7(2) of Brussels I Regulation Recast. In addition, the Advocate General concluded that the place where the injured party’s registered office is located may also fall under Article 7(2), because this interpretation fosters effective legal protection under competition law. Otherwise, a company that had purchased trucks in various Member States would have to initiate (the same) antitrust damages proceedings in those various States, which would hardly be efficient. The Advocate General did emphasise, however, that Member States are free to give certain courts exclusive jurisdiction to hear antitrust damages cases.

[1]              Advocate General J. Richard de la Tour, 22 April 2021, case C-30/20.

[2]              Regulation (EU) No 1215/2012 of the European Parliament and of the council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

On 30 June 2021, Amsterdam District Court rendered an interlocutory judgment in the case between the foundation Data Privacy Stichting and Facebook.[1] The underlying dispute concerns the question of whether Facebook has violated the privacy of its users.

In this interlocutory judgment the District Court ruled on its jurisdiction, the admissibility of Data Privacy Stichting’s claim and the applicable law.

With regard to the jurisdiction of the District Court, the District Court assumed jurisdiction on various grounds. Firstly, Facebook has an establishment in the Netherlands (the “anchor defendant”) which performs relevant activities with regard to the revenue model (personalised advertisements) of Facebook. The claims against the various Facebook entities are therefore so closely connected that the District Court has jurisdiction to rule on all claims simultaneously (Article 8(1) Brussels I Regulation Recast). Secondly, the damage is suffered by the individuals represented by the foundation. This damage is suffered in the Netherlands. Based on “Erfolgsort”, the Dutch court therefore has jurisdiction to rule on this damage (Article 7(2) Brussels I Regulation Recast). Thirdly, the District Court ruled that it had jurisdiction based on the GDPR. Facebook has an establishment in the Netherlands and the individuals represented by the foundation reside in the Netherlands. Both facts are grounds for jurisdiction (Article 79 GDPR). Importantly, the District Court concluded that the rules on jurisdiction from the Brussels I Regulation Recast and the GDPR were not mutually exclusive.

Furthermore, regarding the admissibility of Data Privacy Stichting’s claim, the District Court ruled that the claimed unlawful activities are the same for all individuals represented by Data Privacy Stichting. The interests of all individuals can therefore be bundled. Furthermore, the fact that Data Privacy Stichting is an ad hoc foundation, funded by an American funder, is no obstacle. The independence and quality of the board of the foundation are guaranteed. Lastly, the GDPR (Article 80) forms no obstacle to representation of individuals on an opt-out basis.

As regards the applicable law, the District Court ruled that the GDPR (and its predecessor) were applicable, based on the Dutch establishment of Facebook. Regarding Dutch law on unlawful act, the Rome II Regulation establishes applicable law in the place where the damage occurs. As the individuals represented by the foundation suffer damage in the Netherlands, Dutch law applies.

[1] https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2021:3307.

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 24 November 2020, the CJEU decided that a hotel using the platform com may, in principle, bring proceedings against Booking before a court of the Member State in which that hotel is established in order to bring  possible abuse of a dominant position to an end. The CJEU made this decision in response to questions referred to it by the Highest German Court (the Bundesgerichtshof), following an appeal against a judgment of the Higher Regional Court in Schleswig, Germany. The latter court had found that it had no jurisdiction to hear the case against Booking by the claimant hotel, Wikingerhof – a company governed by German law – because Booking has its seat in the Netherlands. According to the Regional Court, under the Brussels Regulation there was no general jurisdiction: neither special jurisdiction for performance of a contractual obligation under Article 7(1)(a) nor that of the court for the place where the harmful event occurred in matters relating to tort, under Article 7(2). ^[1]The Brussels Regulation: Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and … Continue reading

 The Court of Justice ruled on the question whether there was jurisdiction under Article 7(2) of the Brussels Regulation. It answered this in the affirmative, concluding that, subject to verification by the referring court, the action brought by Wikingerhof, in so far as it is based on the legal obligation to refrain from any abuse of a dominant position, is a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of the Brussels Regulation. ^[2]Court of Justice of the European Union, Press Release NO 147/20, 24 November 2020.

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.