Short Reads

ECJ answers preliminary questions on jurisdiction in cartel damage case 

ECJ answers preliminary questions on jurisdiction in cartel damage ca

ECJ answers preliminary questions on jurisdiction in cartel damage case 

05.09.2019 NL law

On 29 July 2019, the ECJ handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in what is termed the trucks cartel. The court clarified that Article 7(2) Brussels I Regulation should be interpreted in such a way as to allow an indirect purchaser to sue an alleged infringer of Article 101 TFEU before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage. In practice, this often means that indirect purchasers will be able to sue for damages in their home jurisdictions.

The court found that alleged damage suffered by an indirect purchaser can be seen as direct damage, and therefore the place where such damage occurred provides a basis for jurisdiction. As for the place where the damage occurred, the court ruled that this is the place where the market was affected by the anticompetitive conduct, continuing the line of reasoning established in its earlier judgment in the flyLAL case.

The ECJ recently handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in the proceedings concerning the trucks cartel. The court decided that an indirect purchaser can sue an alleged infringer of the cartel prohibition (contained in Article 101 TFEU) before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage.

The questions concerned proceedings between the Hungarian company Tibor-Trans and the Dutch company DAF Trucks in a damages claim following on from a European Commission decision of 19 July 2016 which established a cartel among fifteen international truck manufacturers, including DAF Trucks.

Tibor-Trans, who did not purchase the trucks directly from the manufacturers but through Hungarian dealerships, brought an action before the courts in Hungary for non-contractual damages against DAF Trucks in 2017.

The question submitted to the ECJ by the Hungarian court concerned the interpretation of Article 7(2) Brussels I Regulation. According to the ECJ, the place where "the harmful event occurred", and therefore the place of jurisdiction, refers to the place where the damage occurred as well as the place of the event giving rise to the damage. The question was whether the place where an indirect purchaser claimed to have suffered damages (in this case Hungary) qualified as the place where the alleged damage occurred.

To answer this question, the ECJ analysed the nature of the damage and the place where the damage occurred. With regard to the nature of the damage, the court referred to its earlier case law which stated that only direct damage could provide a basis for the jurisdiction of a court. According to the court, the damage alleged by Tibor-Trans, which consisted of additional costs incurred as a result of artificially high prices, appears to be the immediate consequence of the infringement and should therefore be qualified as direct damage, even though Tibor-Trans was an indirect purchaser of the trucks.

With regard to the place where the damage occurred, the court referred to the European Commission's decision establishing that the infringement covered the entire EEA (of which Hungary has been a member since 2004). The court referred to its earlier judgment flyLAL-Lithuanian Airlines, and concluded that, where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 7(2) Brussels I Regulation. According to the ECJ, this approach is consistent with the objectives of proximity and predictability of the rules governing jurisdiction, as the courts of the Member State in which the affected market is located are best placed to assess such actions for damages and, additionally, an economic operator engaging in anticompetitive conduct can reasonably expect to be sued in the courts of the place where its conduct has allegedly distorted competition.

 

This article was published in the Competition Newsletter of September 2019. Other articles in this newsletter:

 

 

 

Team

Related news

03.10.2019 NL law
It's in the details: HSBC fine quashed for insufficient reasoning

Short Reads - The General Court annulled the EUR 33.6 million fine imposed on banking group HSBC for its participation in the euro interest rates derivatives cartel. Full annulment was granted based on the Commission's failure to provide sufficiently detailed reasoning for the first step of the fine calculation, establishing the value of sales. As the value of sales could not be established in a straightforward way, the Commission used a proxy. When doing so, the Commission needs to properly explain its reasoning to allow the companies fined to understand how it arrived at the proxy. 

Read more

03.10.2019 NL law
The postman will no longer ring twice: Minister unblocks postal merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently blocked postal operator PostNL's acquisition of its only national competitor, Sandd, because this would create "a monopolist on the postal delivery market". However, the Dutch Minister of Economic Affairs and Climate Policy has overruled the ACM's decision on grounds of public interest. Invoking industrial policy or public interest reasons for merger clearance seems to be catching on.

Read more

03.10.2019 NL law
The ACM has to pay: moral damages awarded to real estate traders

Short Reads - The Dutch Authority for Consumers and Markets (ACM) needs to cough up a total of EUR 120,000 in moral damages to three real estate traders. The Dutch Trade and Industry Appeal Tribunal (CBb) agreed with the real estate traders that the annulment of the ACM's cartel decisions against them was insufficient compensation for the harm they suffered as a result of the length of the procedure and the press coverage of their cases.

Read more

02.10.2019 NL law
Politie aansprakelijk voor schietpartij Alphen aan den Rijn

Short Reads - De politie is aansprakelijk voor de schietpartij in een winkelcentrum Alphen aan den Rijn in 2011. Dat oordeelt de Hoge Raad in zijn arrest van 20 september 2019 (ECLI:NL:HR:2019:1409). Bij deze schietpartij vonden zes mensen de dood en raakten zestien mensen gewond. De dader doodde ook zichzelf. Nabestaanden van dodelijke slachtoffers, slachtoffers die gewond raakten en winkeliers spreken de politie aan tot schadevergoeding. Zij voeren aan dat de politie de vergunning voor de wapens die de man gebruikte, niet had mogen verlenen.

Read more

03.10.2019 NL law
Margrethe Vestager to play matchmaker between enforcement and regulation

Short Reads - Current Competition Commissioner Margrethe Vestager may face even greater challenges in the next European Commission. President-elect Ursula von der Leyen has not only nominated Vestager for a second term as Commissioner for Competition, but has also asked her to coordinate the European Commission's digital agenda. As a result, Vestager may soon be tackling digital issues through competition enforcement whilst also proposing additional regulation to deal with these (and related) issues pre-emptively.

Read more

02.10.2019 NL law
Dutch national police service liable for unlawful granting of firearms permit

Short Reads - In a recent decision (ECLI:NL:HR:2019:1409), the Supreme Court has decided that the Dutch national police force is liable for damage suffered by victims of a shooting which took place in a shopping centre in 2011; an event that shocked the Netherlands. The Supreme Court held that the police had unlawfully granted a permit for the firearms used in the shooting.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring