General market studies are insufficient proof to establish dominance, two Dutch District Courts rule
In two recently published Dutch District Court judgments, the high evidentiary standard for invoking competition law arguments in civil proceedings was confirmed.
Pursuant to standing case law of the Dutch Supreme Court, a party invoking an infringement of EU or Dutch competition law is required to substantiate such a claim with relevant (economic) facts and circumstances in order to allow for an adequate and reasoned (economic) debate. Specifically, the two recent judgments reaffirm that claimants cannot solely rely on general market studies of national competition authorities or commercial firms to substantiate their claims.
In the first case, the Noord-Holland District Court held that Amsterdam international airport Schiphol did not abuse a dominant position. The question arose in civil proceedings after Schiphol terminated a concession and rent contract with VATFree, a provider of VAT refund assistance services, thus terminating VATFree's presence at Schiphol. VATFree argued that access to Schiphol is pivotal for reaching its target group – that is, visitors from non-EU countries. On that basis, it argued that terminating the contracts granting this access amounted to abuse of dominance by Schiphol.
According to the District Court, VATFree failed to meet the high evidentiary standard. It had only relied on a 2010 report from the Dutch Authority for Consumers and Markets, in which it was found that Schiphol had a dominant position on the market for passenger handling services. However, the District Court found that the scope of that report and the relevant market is limited to activities directly ancillary to aviation activity as defined in the Amsterdam Airport (Operation) Decree 2006. The District Court understood this as encompassing only those activities without which it is impossible for passenger aircrafts to take off and land. In this sense, VAT refund assistance services are too far removed from aviation activity to be covered by the report and hence the plaintiff's claims were not sufficiently substantiated.
In the second case, the Gelderland District Court dismissed a claim based on abuse of dominance in the market for propionate, a component for animal feed. It found that the market study the claimant relied on was insufficient to establish dominance, since the report did not give sources or sufficient reasons for the market share figures it contained. The claimant's own, additional estimates as to the respondent's market share could not save its claims.
These judgments serve as a reminder that Dutch courts are reluctant to allow complaints based on competition law in civil proceedings in the absence of detailed, case-specific and relevant documentation substantiating the existence of dominance and the alleged infringement.
This article was published in the Competition Law Newsletter of July 2018. Other articles in this newsletter: