The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.
Bundling of claims
The Court ruled that the bundling of claims by SECC through assignments does not change the fact that the claims brought forward by SECC are individual claims. These claims should be individually considered. More specifically, the Court held that SECC should show that it is plausible that the assignors have potentially incurred harm, and therefore SECC must substantiate for each assignor that the assignor has purchased relevant services or products of the defendants in the applicable cartel period. The Court held that SECC must submit to the Court for each assignor at a minimum one (relevant) sale or services contract. During the follow-up proceedings for the determination of damages, SECC and the defendants could also discuss in more detail the number of contracts that have allegedly been affected by the cartel.
As to the jurisdictional challenge made by the defendants, arbitration clauses between the defendants and assignors could preclude the Court from exercising jurisdiction. However, the Court held that these arbitration clauses only apply to disputes that were foreseeable at the time of the contracts’ conclusion. According to the Court, the cartel damages claims filed by SECC were not foreseeable at the time of the contracts’ conclusion. Furthermore, the Court held that a different outcome would result in practical difficulties for parties claiming cartel damages, which would violate the effectiveness principle under EU law.
As to statutory limitation, the Court held that the key question for the starting date of the limitation period is when the assignors were in fact able to submit a claim against the defendants. The Court held that the assignors had sufficient knowledge of the factual basis of the claims on the date of the European Commission decision which established the infringement. Therefore, the limitation period started on the day after 21 February 2007.
The Court then analysed per assignor whether its claims were either mentioned in SECC's writs of summons or in both formal letters interrupting the five-year limitation period. For some assignors the Court concluded that they were not mentioned in (one of) these letters, nor in the writs of summons, so that – in principle – the limitation period has run out with respect to those claims. However, the limitation period has not run out with respect to these claims insofar the defendants were notified of the assignment of these claims to SECC before (one of) the letters were sent, since SECC’s letters also interrupt the limitation period of SECC’s own claims.
This article was published in the Competition Newsletter of November 2019. Other articles in this newsletter: