Regiojet

On 12 January, the Court of Justice ruled in the case of RegioJet a.s. versus the Czech Railway Company – Dráhy a.s.[1] When the Czech competition authority and later the European Commission investigated the abuse of power by the railway company, RegioJet a.s. brought a claim for damages before the national civil court. RegioJet sought access to evidence concerning the national investigation into the railway company, including in respect of materials specially prepared for the national competition authority. The national court awarded this claim, after which the parties appealed and questions about the interpretation of Articles 5 and 6 of the Antitrust Damages Directive[2] were put to the Court of Justice. These articles pertain to disclosure of evidence (Article 5) and disclosure of evidence included in the file of a competition authority (Article 6).

The Court of Justice held that an ongoing investigation by a competition authority does not automatically prevent a national court from granting disclosure of evidence. However, a court must assess whether disclosure of evidence can impede the investigation and whether the evidence is relevant, proportionate and necessary. This is different in the case of documents specifically prepared as part of a (national) investigation procedure or provided by the authority to that undertaking. Such documents from the ‘grey list’ of Article 6 of the Antitrust Damages Directive can only be provided after an investigation is terminated. The Court of Justice concluded that a suspension is not a termination.

In order to assess whether or not evidence falls under the ‘grey list’, the court may first order to inspect this material itself. Until it has formed an opinion on this and possibly also until the competition authority’s investigation has been completed, the evidence must be blocked from the applicant.

[1] Court of Justice, 12 January 2023, ECLI:EU:C:2023:6 (RegioJet/České dráhy a.s.,).

[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.

Abstract damages

On 16 February, the Court of Justice ruled in the trucks case at the request of the Spanish court in the case of Tráficos Manuel Ferrer SL and Mr D. Ignacio v Daimler AG on the abstract damages.[1]

Pursuant to Article 17(2) of the Antitrust Damages Directive, a national court can itself estimate the damage resulting from a cartel if it is practically impossible or excessively difficult to accurately estimate the damage suffered on the basis of the available evidence.

The Court of Justice has now ruled that a national court may not award such abstract damages if the impossibility to specifically determine the damages is the result of the applicant’s inaction. The Court found that the Antitrust Damages Directive provides for instruments to eliminate the inequality in the provision of information between a cartelist and a victim. In particular, the Court mentioned the possibility of requesting disclosure of evidence on the basis of Article 5 of the Antitrust Damages Directive. Only if the victim has sufficiently availed itself of these possibilities can the court proceed to an abstract estimate of the damage. The national court must determine whether the claimant has availed itself of that possibility sufficiently.

[1] Court of Justice, 16 February 2023, ECLI:EU:C:2023:99 (Tráficos manuel Ferrer SL/Daimler).

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).

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).

MTB / AB and Heineken

On 23 June, the Supreme Court referred the questions for a preliminary ruling announced on 21 April[1] regarding jurisdiction of the Dutch court in the case of Macedonian Thrace Brewery S.A. (“MTB“) versus the Greek Athenian Brewery S.A. (“AB“).[2]

In 2014, AB was fined by Greek competition authority for abusing its dominant position on the Greek beer market. In addition to AB, MTB also brought actions against Dutch company Heineken N.V. (“Heineken“) because it held nearly 100% of the shares in AB’s capital in the relevant period, thereby exerting decisive influence on AB, an argument under substantive competition law.

For the jurisdiction of the Dutch court vis-à-vis AB, MTB invoked Article 8(1) of the Brussels I Regulation Recast[3], which provides that in the event of several defendants, a defendant (AB) can also be summoned to appear before the court of the domicile of a co-defendant (the anchor defendant, Heineken), provided the claims are ‘so closely connected’ that it is expedient to hear and determine them together. AB and Heineken contest that Heineken is liable on the basis of substantive competition law and argue that there is therefore no ‘close connection’, which leads to the District Court’s lack of jurisdiction to rule on the claims against AB.

The question is to what extent the discussion of liability must already be conducted at the jurisdiction stage. The Supreme Court therefore asked two questions, which, briefly put, read as follows:

1. Should the District Court already assume the presumption of decisive influence in the assessment of jurisdiction? and
2. If so, how should the standard formulated in the Kolassa and Universal Music judgments that defences must also play a role in the assessment test be specified? In that case, is it sufficient in the jurisdiction assessment to assume jurisdiction that it cannot be deemed to have been ruled out in advance that there was such decisive influence?

In formulating these questions referred for a preliminary ruling, the Supreme Court seems to want to readily assume jurisdiction, which of course says nothing about that party’s actual liability. This will require a substantive assessment during the proceedings.

[1] Supreme Court 21 April 2023, ECLI:NL:HR:2023:660 (MTB/AB and Heineken).

[2] Supreme Court 23 June 2023, ECLI:NL:HR:2023:965 (MTB/AB and Heineken).

[3] 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 (recast) (“Brussels I Regulation Recast”).

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.).

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.).

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).

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.)

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.

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/.

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 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 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 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).