Amsterdam District Court 22 July 2015, ECLI:NL:RBAMS:2015:4408 (KLM et al./Deutsche Bahn et al.)
On 22 July 2015, the District Court of Amsterdam issued a judgment in proceedings between KLM et al. (“KLM”) and Deutsche Bahn et al. (“DB Schenker”), in which it granted KLM leave to summon a third party on the basis of article 118 of the Dutch Code of Civil Procedure (“DCCP”).
The proceedings relate to a cartel infringement on the market for air freight transportation (air cargo) as established by the European Commission in 2010. Appeals against this infringement are currently pending. The proceedings between KLM and DB Schenker were initiated in 2011 by KLM filing for a declaratory judgment that it was not liable to pay damages to DB Schenker or, alternatively, only to a limited extent. In the judgment, the court determined three procedural motions (incidenten) that were raised by the parties.
DB Schenker – the defendant – argued that the Dutch court lacked jurisdiction and argued KLM’s claims were inadmissible, because, amongst other things, KLM did not have sufficient procedural interest in the judgment requested. The District Court ruled, however, that it has jurisdiction over the case, since at least one of the defendants is seated in the Netherlands. This is in line with established case law. Furthermore, the court did not accept DB Schenker’s position that KLM’s claim for a negative declaratory judgment inadmissible.
One of the arguments raised by DB Schenker for inadmissability, concerned the assignment of DB Schenker’s claims to Barnsdale, a German subsidiary of DB Schenker. KLM’s procedural motion was closely connected to this argument. KLM requested leave to summon Barnsdale to appear in the proceedings on the basis of article 118 DCCP. This article can be used as a ground to involve a third party in the proceedings if it is “necessary” or “useful”, according to Dutch Supreme Court case law (HR 15 maart 2013, ECLI:NL:HR:2013:BY7840 (Biek Holding)).
KLM argued that the involvement of Barnsdale was both necessary and useful. The urge to involve Barnsdale was partly because it had brought its own spurious claims before the German courts in 2013. As a result, both the Dutch and the German courts had to rule on the same claims, which put the parties at risk of irreconcilable judgments. Additionally, when KLM initiated the Dutch proceedings (2011), it was not able to summon Barnsdale since Barnsdale did not yet exist at that time. DB Schenker, however, argued that the risk of irreconcilable judgments was non-existent, because KLM’s claims for a negative declaratory judgment were not the same as Barnsdale’s claims in the German proceedings. Therefore, the risk of irreconcilable judgment did not exist. Consequently, DB Schenker claimed that article 118 DCCP could not be used to summon Barnsdale to appear in the proceedings.
The District Court, however, granted KLM’s motion to summon Barnsdale, on the basis of article 118 DCCP, for three reasons. In the first place, KLM could not have summoned Barnsdale at the beginning of the proceedings because Barnsdale did not exist at that time . Secondly, KLM’s interest in involving Barnsdale stemmed from the assignment of claims by DB Schenker, a circumstance attributable to DB Schenker. Thirdly, the District Court emphasized that since the Dutch court was seized before the German court, KLM was granted leave to summon Barnsdale in the Dutch proceedings in accordance with the principle of lis pendens .
The Amsterdam District Court’s judgment, in granting KLM leave to summon a third party because the court considers it ‘useful’, is in line with the relevant case law on article 118 DCCP (particularly the aforementioned Biek Holding-case, ECLI:NL:HR:2013:BY7840. The relevant case law still leaves some questions unanswered. For example, questions can be raised on whether article 118 DCCP requires leave at all, or whether it can be used to involve a third party right away. What can be learned from the judgment, however, is that it is possible under article 118 DCCP to involve a third party if it is “necessary” or “useful” and this recent judgment forms a good example of the latter.
A Stibbe team headed by Jeroen Kortmann represents KLM in this litigation.
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