On 5 January, the full text of a decision of the General Court in the appeal of British Airways plc against the European Commission on the airfreight cartel was published.[1] The European Commission fined British Airways in 2010 for its role in the airfreight cartel, but the General Court annulled this part of the Commission’s decision in 2015. British Airways received back the amount paid as a fine plus a ‘guaranteed return’. According to British Airways, it has also the right to receive an amount for default interest of more than EUR 21 million and compound interest. The Commission rejected this request in a first letter and confirmed its rejection in a second letter. British Airways requested to annul this decision, but now the Gereral Court decided that the application for its annulment was too late. It did not follow British Airways’ arguments that the limitation period started at the date of the second letter, since the second letter was only a confirmation of the first. The applicable for annulment is therefore found inadmissible.

[1] General Court 22 December 2022, ECLI:EU:T;2022:863 (British Airways/European Commission).

Deutsche Bank / consumers on limitation period

On 6 March, the Court of Justice ruled on limitation in a case between Deutsche Bank AG and two Spanish consumers in relation to the Euribor cartel.[1] Deutsche Bank believed that the consumer’s action had expired based on the notion that the limitation period begins to run before the summary of the European Commission’s decision had been published. The Court of Justice did not concur and ruled that for both consumers and professionals or companies, the date of publication of the summary by the Commission is when the limitation period begins to run.

[1] CJEU 6 March 2023, cases C-198/22 and C-199/22 (Deutsche Bank / consumers).

On 10 June 2022, the UK Court of Appeal ruled in the case between Gemalto Holding B.V. and Thales Dis France SA and 13 others (“Gemalto“) versus Infineon Technologies AG, Infineon Technologies UK Ltd, REnesas Electronics Corporation (“Infineon“).[1] Infineon was fined by the European Commission in 2014 because of price agreements over chips. Competitor Gemalto had subsequently initiated proceedings for damages. The question was whether Gemalto’s claims had meanwhile become time-barred. The Court of Appeal ruled, as had the lower courts, that this was indeed the case. It noted that the five-year limitation period begins to run on the date of the European Commission’s press release of 22 April 2013. It is relevant that Gemalto played a role in the European Commission’s investigation into the cartel in the years before. Gemalto received, among other documents, the Statement of Objections. The Court of Appeal therefore found that Gemalto knew about the cartel at least at the time of the press release of 22 April 2013, even though the European Commission’s decision dates from a later date, namely 2014.

[1] Court of Appeal (Civil division), [2022] EWCA Civ 782, case CA-2022-00233 (Gemalto/Infineon).

On 25 May 2022, the Amsterdam District Court rendered an interim judgment in a case initiated by Macedonian Thrace brewery S.A. (“MTB“) against Heineken N.V. and its Greek subsidiary Athenian Brewery S.A. (together “Heineken“).[1] In September 2014, the Greek competition authority established that Heineken had abused its dominant position on the Greek beer market by excluding main competitors from the distribution chain as much as possible. MTB is a competitor seeking compensation for the damage. The District Court has already rendered previous interlocutory judgments in these proceedings, which were discussed in Q (2019-2 and 2021-1).

The District Court discussed three subjects. Firstly, the District Court found that Greek law applies, but this was not in dispute between the parties. The parties do have a difference of opinion on the question of whether the claim had become time-barred under Greek law, which was the second subject. The District Court merely provided a preliminary finding because it had not yet established that the alleged conduct had taken place. It based that finding on opinions of Greek professors submitted by the parties. The District Court concluded that the limitation period under Greek law does not commence until the unlawful act has ended and concurred with the infringement period established in the decision. Thirdly, the question was whether the court is bound by the decision of the Greek competition authority. Relevant in this respect is the interpretation of a Greek statutory provision. The District Court usually assesses this on the basis of the parties’ assertions, but here the Court wanted to consult an expert from the International Legal Institute. The parties will be given the opportunity to comment on the announced appointment of experts and the proposed questions to the ILI.

[1] Amsterdam District Court 25 May 2022, ECLI:NL:RBAMS:2022:2866.

On 11 November 2021, the Court of Justice ruled in the air cargo case between the Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands B.V. v. British Airways, KLM, Lufthansa and a group of other airlines.[1] It answered the questions referred to it for a preliminary ruling by the District Court of Amsterdam, the Netherlands, as to whether national courts could also rule on claims relating to flights dating from before 1 May 2004 between the EU and outside countries; flights dating from before 19 May 2005 between Iceland, Lichtenstein, Norway and outside countries and flights dating from before 1 June 2002 between the EU and Switzerland. The Court of Justice answered in the affirmative. National courts may also rule on older claims.

[1] CJEU 11 November 2021, case C-819/19 (Stichting Cartel Compensation and Equilib/KLM and others).

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 14 April 2021, the Court of Appeal in London upheld a High Court decision of February 2020 to the effect that computer company OT Computers was not time-barred from suing chip manufacturers Infineon Technologies and Micron Technology for their role in the memory chips cartel for which the European Commission had fined the companies back in 2010.[1] The chip makers attempted to get the ruling overturned on appeal, arguing that the limitation periods for the claims had passed because the impact of the cartel was investigated by the US Department of Justice years prior to the EU probe into the chip makers’ conduct. This argument did not succeed, as the judge said the EU decision involved information that was essential in order to bring a claim, and the claimants therefore had to wait for the decision. As the limitation arguments were a preliminary issue which has now been decided in favour of OT Computers, the parties can now press ahead with full legal proceedings.

[1] Court of Appeal London 14 April 2021, [2021] EWCA Civ 501, Case No. A4/2020/0658, A4/2020/0672, A4/2020/0675 & A4/2020/0674.

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 3 February 2021, Dortmund Regional Court (Landgericht) ruled that a transport association from North Rhine-Westphalia (its name has been anonymised) is entitled to compensation for damage caused by a railway construction cartel.[1] This association had acquired companies that paid too much for railway superstructure materials as a result of a cartel. On 18 July 2013, the German competition authority, the Bundeskartellamt, imposed a fine of EUR 97.64 million on a large number of producers of railway building materials (also anonymised). According to the penalty decision, the cartelists made price, quota and customer protection agreements on the private market in Germany from 2001 to 2011. The Regional Court found that it may be suspected that all tenders for the rail materials in question fell under the cartel during that period. With regard to the damage, Dortmund Regional Court referred to a general study by Oxera from 2009[2] which shows that 93% of price cartel cases results in a price increase. Given the duration of the cartel (10 years) and the size of the cartel (90% of the market participated), damage could be suspected in this case as well. Because the claimants had taken over the damage-suffering companies, they could lodge the claims for damages. The cartelists provided insufficient proof to the contrary and must therefore compensate the damage. The court assumed a prohibited price increase of 10%. Other claims were rejected because although another company had purchased material from the defendants, this company had not indicated why these transactions fell under the cartel.

[1]              Dortmund Regional Court, 3 February 2021, ECLI:NLDE:LGDO:2021:0203.8O116.14KART.00.

[2]              Oxera, 2009: Quantifying Antitrust Damages: Towards Non-Binding Guidance for Courts.

Pursuant to Article 3:305a DCC, Stichting Gin Schade filed claims against the backer of failed investments in Dutch hardwood. Like the District Court, the Amsterdam Court of Appeal ruled on 16 March 2021 that the foundation’s claims are inadmissible because it did not meet the requirements of Article 3:305a DCC at the time the proceedings were instituted.[1] In doing so, the Court of Appeal attached importance to the fact that the requirements of the Claim Code 2011 had not been met, nor, for that matter, the new requirements of the Claim Code 2019. An amendment to its articles of association in 2018 was of no avail to the claim foundation, because that would entail that it was acting in a different capacity. The claims instituted on the basis of a mandate were also disregarded, because these had become time-barred, as the letter of interruption pertained explicitly to collective claims instituted on the basis of Article 3:305a DCC.

[1] Amsterdam Court of Appeal 16 March 2021, ECLI:NL:GHAMS:2021:747.