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).