Court assesses threshold for substantiating cartel damage plausibility

The Court held that the possibility of damage was made sufficiently plausible if there was at least proof of one contract between each assignor and an elevator manufacturer in the infringement period. Employee statements, maintenance books or invoices without further substantiation do not suffice. The Court furthermore asserted the Dutch limitation regime in light of the European principle of effectiveness and the liability of Kone's parent company.

Plausibility of damage

In previous judgments, the Rotterdam District Court held that in order to allow referral to the separate damages assessment proceedings, claim vehicles must submit evidence, for each assignor, that they had entered into at least one installation, purchase or maintenance contract in relation to an elevator within the infringement period. In both proceedings, the Court assessed per assignor whether the claim vehicles had met this threshold.

In the DGL proceedings, the Court held that the claim vehicle succeeded in submitting at least one contract for most of its assignors. For three of the assignors, DGL submitted photos of an elevator’s maintenance card, instead of a contract. The Court held that it could not be inferred from these photos of the elevator maintenance books that the assignor had actually concluded a contract with an elevator manufacturer during the infringement period.

In the SECC proceedings, the outcome was different. The Rotterdam District Court held that SECC did not submit relevant contracts for the majority of assignors; as such it had failed to prove that it was likely that its assignors suffered any damage due to the infringement. Instead of submitting a relevant contract, SECC tried to prove the probability of damage by submitting statements from employees of the assignor, invoices for maintenance services or purchases, or (examples of) elevator maintenance books. According to the Court, these documents did not prove that an underlying contract was actually concluded between the assignor and an elevator manufacturer within the infringement period. Therefore, the claims of 102 assignors (out of 122 assignors) were dismissed.

Statutory limitation

In a previous interim judgment, the Rotterdam District Court ruled that the limitation period had started on the day after 21 February 2007, i.e. the day of the European Commission’s decision. SECC argued that Dutch rules on statutory limitation are contrary to the principle of effectiveness of EU law. The Court rejected this argument, pointing out that Dutch law provides for a possibility to interrupt a running limitation period. This makes it possible for an assignor to await a final judgment on appeal without running the risk that claims become time-barred. As such, the Dutch limitation system is not contrary to the principle of effectiveness of EU law. The Court then assessed per assignor whether or not the claims were time-barred. For another 14 assignors, the Court ruled that the claims were time-barred.

Reduction of claim after settlements

Both claim vehicles entered into settlements with several other elevator manufacturers. Based on these settlements, the claim vehicles filed a motion to withdraw the proceedings against the settling manufacturers and to reduce the claims vis-â-vis the remaining defendants. Kone (and Otis) argued that because of this claim reduction, the claim towards them was no longer sufficiently concrete. The Rotterdam District Court rejected this argument, considering that the claim reduction could not harm the interests of Kone and Otis. In addition, it considered that, for this phase of the proceedings, the claim reductions were sufficiently concrete. A debate on the quantum of damages and the exact internal shares of each of the manufacturers will take place in the damages assessment proceedings.

Liability of parent company Kone Oyj

Kone Oyj (the parent company of Kone) argued that it could not be held liable for the damage because it did not itself commit any wrongful act. Kone Oyj also argued that there is no basis in civil law for applying the European law concept of an undertaking. The Rotterdam District Court rejected this argument as the Commission had found Kone Oyj to be part of the undertaking that committed the infringement and as such, was liable for the fine. Therefore, according to the Rotterdam District Court, it is also jointly and severally liable for any damage suffered by the assignors.

The next step is for the claim vehicles to now initiate the damages assessment proceeding, for the remaining assignors.

Conclusion

Both rulings confirm that while the threshold for referral to the damages assessment proceedings is low, it is still a real threshold. Courts make a serious assessment on a per assignor basis whether the threshold is met. Claimants that are unwilling or unable to sufficiently substantiate their claims, are barred from referral to the damages assessment proceedings.

This article was published in the Competition Newsletter of August 2021. Other articles in this newsletter:

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