On 23 June 2021, in an action for damages with regard to the lift cartel, Rotterdam District Court ruled that the possibility of damage is plausible for 41 housing corporations represented by the claimant Stichting De Glazen Lift (DGL).[1] In its interlocutory judgment of 29 May 2019, the District Court gave DGL the opportunity to enter documents into evidence showing that during the period of the cartel each member of the foundation had purchased at least one lift from the cartelists or had had at least one lift maintained or modernised by the cartelists.[2] In this judgment, the District Court confirms that evidence of a single transaction is sufficient to (be able to) make the possibility of damage plausible and to achieve the threshold for referral to the determination of damages, at which stage the scope of the damage can be addressed.[3] DGL has sufficiently done so by submitting the additional documents; the District Court rejected the cartelists’ defences against these.

The District Court then discussed the pass-on defence put forward by the cartelists, with regard to which the District Court had ruled in the interlocutory judgment that it would be up to them to substantiate this defence and, if necessary, prove it, for which purpose DGL should, however, offer sufficient starting points by submitting documents unavailable to Kone and Otis.[4] Kone and Otis argued that DGL did so insufficiently, that they are therefore unable to substantiate the passing on, and that DGL’s claims should therefore be denied. The District Court agreed with Kone and Otis that DGL submitted a very limited number of documents, but the District Court nevertheless did not proceed to deny the claims because, based on the documents, the District Court in any event deemed it plausible that the participants did not or could not pass on all additional costs, so that it was nevertheless plausible that the members suffered damage.[5]

The District Court issued a declaratory judgment to the effect that Kone and Otis are jointly and severally liable for the damage suffered by the participants and refers the case to follow-up proceedings for the determination of damages.

[1] Rotterdam District Court 23 June 2021, ECLI:NL:RBROT:2021:6635.

[2] Para. 2.1.

[3] Para. 2.6.

[4] Paras. 2.1, 2.11

[5] Para. 2.13.