On 12 May 2023 the UK High Court ruled that that it is not the right forum to judge on Mercedes-Benz’s antitrust damages claim against Continental and ZF Friedrichtshafen.[1] This concerns a follow-on damage claim in light of the decision of the European Commission on information exchange on automotive brake parts. The court found that the forum for which the dispute has its closest and most real connexion is Germany, which is the natural forum for the dispute. To reach that conclusion, the court found relevant that both claimants and defendants have their headquarters in Germany, the addressees of the Commission’s decision are German entities, the infringement occurred in Germany and commonly in the German language, a great majority of the damages suffered by Mercedes was suffered in Germany, the evidence was in the German language and probably German law is applicable.

[1] Royal Courts of Justice 12 May 2023, [2023] EWHC 1143 (comm) (Mercedes-Benz / Continental et al).

On 12 January, the Court of Justice rendered its judgment in the proceedings started by HSBC Holding plc, HSBC Bank plc, HSBC Continental Europe and supported by the banks Crédit Agricole and JP Morgan Bank against the European Commission in light of HSBC’s involvement in the Euribor cartel.[1] HSBC challenged the Commission’s finding that it took part in a cartel relating to the Euribor benchmark and it challenged the General Court’s decision to dismiss HSBC’s action. The Court of Justice acknowledged that the General Court could not dismiss HSBC’s action and said that the General Court made several errors of law, but upheld the finding that HSBC did participate in the cartel.

[1] EUCJ 12 January 2023, ECLI:EU:C:2023:11 (HSBC/Commission).

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).

On 7 February 2023, the Competition Appeal Tribunal (CAT) rendered a judgment in the cartel damages cases started by Royal Mail Group Ltd and BT Group PLC against DAF Trucks Limited and other truck manufacturers following the decision of the Commission concerning the trucks cartel.[1] This is the first final judgment in a damages proceeding relating to the trucks cartel in which the CAT awards a specific percentage and an amount of damages. The claimants argued on the basis of economic theory that the overcharge was an estimated 10%, the defendants argued that there was no overcharge at all.  The CAT concluded that the overcharge for which DAF is liable is assessed at 5% for both claimants on their value of commerce over the whole of the relevant period, being damages of approximately EUR 30 million. DAF’s mitigation defences on passing on the damages, all failed. BT Group is also entitled to simple interest on its damages award of the base rate plus 2%. On 16 May 2023 and in a separate decision, the CAT allowed DAF to  appeal  this decision.[2]

[1] CAT 7 February 2023, [2023] CAT 6 (Royal Mail and BT Group / DAF et al).

[2] CAT 16 May 2023, [2023] CAT 31 (Royal Mail and BT Group / DAF et al).

On 23 June, the Mannheim Regional Court ruled that Nestlé Deutschland AG and Molkerei Alois Müller GmbH & Co KG are entitled to in total almost € 14 million from sugar producers Südzucker, Nordzucker and Pfeifer & Langen for damages following cartel agreements on sugar prices. These are two pilot proceedings. According to the court, around 40 damages proceedings started by various food and beverage manufacturers following the cartel are filed with the Mannheim Regional Court. In total several hundred million euros are being claimed.[1] Normally this kind of ruling would lead to a better chance for claimants to reach a favourable settlement with defendants.

[1] Source: https://www.marketscreener.com/quote/stock/SUDZUCKER-AG-436654/news/Sugar-manufacturers-ordered-to-pay-millions-in-damages-44178194/.

Trucks

On 7 June, a hearing was held in the second group of cases relating to the truck cartel, including Stichting Trucks Cartel versus DAF, MAN,Volvo/Renault, Iveco, Daimler and Scania. During the hearing, four topics were discussed: the scope and basis of the claims, the assignment agreements, the indirect buyers (and the term ‘passing-on’) and the applicable law. At the hearing, the District Court announced its intention to ask questions about the applicable law, because it was not entirely certain about its own judgment on applicable law in the first group of cases. The District Court will render a judgment on 13 September 2023 with its intention to ask questions for a preliminary ruling, after which the parties can respond. The District Court intends to render a judgment with a decision on this intention on 8 November 2023.

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.).