EU lift cartel damage claim rejected by Brussels Court of Appeal

On 21 February 2007, the European Commission imposed a EUR 992 million fine on four lift producers for infringing Article 101 TFEU as a result of a market sharing agreement in Belgium, Germany, Luxemburg and the Netherlands between 9 May 1996 and 29 January 2004. 

In 2008, the Commission filed a damage claim, as a private claimant, before the commercial courts in Brussels for the damage it had allegedly suffered under various maintenance and modernisation contracts for EU buildings in Belgium and Luxemburg, entered into with those four lift producers during the cartel period.

On 6 November 2012, in response to a preliminary reference from the Brussels courts, the European Court of Justice (CJEU) confirmed that the EU could file such a claim as a private entity, provided that it did not use the confidential information it had obtained in the framework of its public enforcement proceedings.

The Brussels commercial court declared that it lacked jurisdiction to rule on the Luxemburg contracts and held on 24 November 2014 in respect of the Belgian contracts that the EU claim was unfounded due to a lack of evidence of damage.

In 2015, the EU appealed, and for the first time also claimed damages for contracts entered into within one year after the end of the cartel period (the so called ‘follow-on period’). The EU also requested and obtained as a preliminary measure an order to produce documents, whereby certain confidentiality claims of the lift producers were respected. This was followed by litigation and judgments on this document production in 2018 and 2020.

On 18 November 2024, following a (for Belgian standards) rather unusual three full days of hearing, the Court of Appeal rejected the EU claim in its entirety on the merits. It thereby held, among other things, that:

• the EU can claim for follow-on contracts;
• the EU had failed to prove fraud in respect of the 20 contracts to which its claim related;
• while the 2007 Commission Decision proves an infringement committed by the lift producers, the EU had failed to prove that the infringement was committed for each of the 20 contracts, nor that the Commission decision itself could be evidence of a causal link with any damage suffered by the Commission;
• there could be no presumption of damage as (i) the 2014 EU Directive did not apply and (ii) it followed from the 2012 judgment of the CJEU (in the preliminary reference) that the damage and causal link had to be established before the national court; 
• the Commission’s economic report to prove damage was in several respects unsound, partly because it conflicted with statements regarding price evolutions made by the EU in the first instance, because it did not take into account the evidence submitted by the lift producers that a price decrease could have other causes, such as modernisation works, technological evolutions, etc.; and
• since the EU had not organised a tender and had consulted only one specific market operator for certain contracts, the cartel cannot have had an impact on such contracts.

The Court of Appeal also held that in such circumstances there was no reason to appoint an expert. It consequently rejected the entire claim and ordered the EU to pay the costs of the appeal proceedings.

One of the many interesting findings in this case is that in Belgium this has been one of the few cases where (confidential – among attorneys) access to documents has been ordered. Another interesting fact is that the claimant has nevertheless been unable to prove any damage for the abovementioned reasons, which confirms the Oxera study for the Commission that cartels do not lead to damage in all cases, in particular not in markets where public tenders have to be organised and not all producers on the market are part of the cartel arrangements.

An appeal before the Belgian Supreme Court (Cour de Cassation) is still possible.