Short Reads

Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

Rotterdam District Court rules that claims in elevator cartel damages

Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

07.11.2019 NL law

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.

Jurisdictional challenge

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.

Statutory limitation

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:




Related news

06.02.2020 NL law
The ACM may cast the net wide in cartel investigations

Short Reads - Companies beware: the ACM may not need to specify the scope of its investigation into suspected cartel infringements in as much detail as expected. On 14 January 2020, the Dutch Trade and Industry Appeals Tribunal upheld the ACM’s appeal against judgments of the Rotterdam District Court, which had quashed cartel fines imposed on cold storage operators. The operators had argued that the ACM was time-barred from pursuing a case against them, because the ACM had not suspended the prescription period by beginning investigative actions specifically related to the alleged infringements.

Read more

07.02.2020 BE law
Het finale Belgische ‘nationaal energie- en klimaatplan’ en de Belgische langetermijnstrategie: het geduld van de Commissie op de proef gesteld?

Articles - Op 31 december 2019 diende België, nog net op tijd, zijn definitieve nationaal energie- en klimaatplan (NEKP) in bij de Commissie. Het staat nu al vast dat het Belgische NEKP niet op applaus zal worden onthaald door de Commissie. Verder laat ook de Belgische langetermijnstrategie op zich wachten. Wat zijn de gevolgen?

Read more

06.02.2020 NL law
CDC/Kemira: Amsterdam Court of Appeal applies European principle of effectiveness to limitation periods

Short Reads - In a private enforcement case brought by CDC against Kemira, the Amsterdam Court of Appeal applies the European principle of effectiveness and rules that claims are not time-barred under Spanish, Finnish and Swedish law. With reference to the Cogeco judgment of the ECJ, the Court considers that claimants must be able to await the outcome of any administrative appeal against an infringement decision, even in relation to respondents who themselves have not filed appeals against the infringement decision.

Read more

06.02.2020 NL law
Pay-for-delay: brightened lines between object and effect restrictions

Short Reads - In its first pay-for-delay case, the ECJ has clarified the criteria determining whether settlement agreements between a patent holder of a pharmaceutical product and a generic manufacturer may have as their object or effect to restrict EU competition law. The judgment confirms the General Court’s earlier rulings in Lundbeck and Servier (see our October 2016 and December 2018 newsletters) in which it was held that pay-for-delay agreements (in these cases) constituted a restriction ‘by object’.

Read more

06.02.2020 NL law
Consumers and Sustainability: 2020 competition enforcement buzzwords

Short Reads - The ACM will include the effects of mergers on labour conditions in its review. It will also investigate excessive pricing of prescription drugs. As well as these topics, the ACM has designated the digital economy and energy transition as its 2020 focus areas. Companies can therefore expect increased enforcement to protect online consumers, and active probing of algorithms.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring