On 16 February 2021, the Amsterdam Court of Appeal (the Court of Appeal) set aside a judgment of the Amsterdam District Court (the District Court) in which the District Court declined jurisdiction over the alleged claims against Athenian Brewery (AB), a Greek subsidiary of Heineken N.V. (Heineken), in a civil case brought by competitor Macedonian Thrace Brewery (MTB).
According to the Court of Appeal, the District Court has jurisdiction over the claims against AB, for the reason that MTB’s claims against AB are sufficiently closely connected to MTB’s (alleged) claims against Heineken. The Court of Appeal referred the proceedings back to the District Court.
Facts and judgment Amsterdam District Court
This judgment is a further chapter in the ongoing litigation in which MTB is pursuing a claim for damages against Heineken and AB relating to AB’s alleged abuse of its dominant position on the Greek beer market. On 19 September 2014, the Greek competition authority fined AB for abusing its dominant position on the Greek beer market. In its decision, the authority found that there was no indication that Heineken was involved in the alleged abuse of dominance of AB.
MTB however initiated a civil claim against both AB and Heineken in Amsterdam. AB and Heineken challenged the jurisdiction of the Dutch courts over the claims against AB. They argued that Heineken could not serve as an “anchor defendant” for the claims against AB, because MTB’s alleged claim against Heineken is baseless. On 9 May 2018, the District Court indeed declined jurisdiction over the claims against AB, but did assume jurisdiction over the alleged claims against Heineken, as Heineken is domiciled in Amsterdam. MTB appealed this decision to the Court of Appeal.
Judgment Amsterdam Court of Appeal
The Court of Appeal set aside the judgment of the District Court and ruled that the District Court has jurisdiction to rule over the alleged claims against AB. According to the Court of Appeal, there is a close connection between the alleged claims against AB and the alleged claims against Heineken. According to the Court of Appeal it is in dispute whether Heineken exercises decisive influence on AB and whether Heineken and AB form one undertaking within the meaning of Article 102 TFEU. However, the Court of Appeal considers these questions of limited importance for the question of jurisdiction. The Court of Appeal ruled that in any case, the Dutch court has jurisdiction to rule over claims in connection with Heineken’s alleged liability. According to the Court of Appeal that assessment by definition requires an assessment of the conduct of AB and the meaning of the decision of the Greek competition authority. According to the Court of Appeal, only after all the requirements for establishing AB’s liability are met, the question arises whether the ‘additional requirements’ for establishing Heineken’s liability are met as well. In other words, the potential liability of Heineken depends on the liability of AB. The Court of Appeal also ruled there was no abuse of procedural law by MTB since it cannot be ruled out at the outset that the claims against Heineken will be dismissed. Finally, the Court of Appeal found that it is foreseeable for AB that it could be summoned before a Dutch court, given that AB sells beer in Greece under the Heineken brand and forms part of the Heineken group.
The Court of Appeal referred the case back to the District Court to further decide on the claims against AB.
It is clear that the Court of Appeal applied a very low threshold for accepting jurisdiction in competition law damages cases. In short, the Court of Appeal assumes jurisdiction merely because, in its view, the alleged liability of Heineken is conditional on the liability of its Greek subsidiary AB. When assessing Heineken’s liability, the court should assess whether the ‘additional requirements’ for Heineken’s liability are met.
This article was published in the Competition Newsletter of March 2021. Other articles in this newsletter: