The Netherlands

On behalf of the team

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.)