The Netherlands

On behalf of the team

On 27 July 2021, the ‘s-Hertogenbosch Court of Appeal ruled in the proceedings concerning the claimant Deutsche Bahn’s prestressing steel cartel against prestressing steel manufacturers Nedri Spanstaal B.V., Arcelormittal España SA, Drahtwerk Köln GmbH and Trafilati Acciai S.P.A. and Fapricela-Indústria de Trefilaria S.A. and a few group companies.[1] These proceedings included Deutsche Bahn’s obligation to furnish facts. The Court of Appeal ruled that Deutsche Bahn must present sufficient factual elements and submit specific information to that end in order to make it plausible that it may have suffered damage. This concerns information that specifies which, when, from whom and at what price cartel products were purchased. According to the Court of Appeal, the submission of a few examples is insufficient.

This obligation to furnish facts does not only entail the identity of the claimants – which means that a claims foundation must comply with this obligation to furnish facts for each individual underlying party – it must also give insight into the original transactions (based on contracts, invoices, packing slips, records, annual report and accounts, etc.). Although the claim should normally be specified at the initial stage of the proceedings, the Court of Appeal offered Deutsche Bahn the opportunity to provide the required explanation.

[1] ‘s-Hertogenbosch Court of Appeal 27 July 2021, ECLI:NL:GHSHE:2021:2341.