Court of Appeal of The Hague rules on liability for antitrust follow on damages claims in the elevator sector

In a decision of 21 February 2007, the European Commission ruled that Kone had infringed European competition law rules together with four other escalator and elevator manufacturers, by exchanging competitively sensitive information and bid rigging (the "Decision"). Subsequently, a large number of parties alleged to have suffered damages from the infringement and combined their claims (using the assignment model) in the claims vehicle Stichting Elevator Cartel Claim ("SECC"). SECC had initially sued two of the five addressees of the Decision, however, only Kone remained in the proceedings after a settlement between SECC and the second defendant.

The judgment of the Appellate Court provides interesting rulings, inter alia, on limitation, the evidentiary threshold concerning the loss a claimant should demonstrate in order to establish liability by the defendant, umbrella pricing, lingering effects and the pass on defence.

Limitation

As the facts of the case are from before the transposition deadline of the EU Damages Directive (Directive 2014/104/EU), the pre-existing Dutch rules on limitation (Article 3:310 and 3:316 Dutch Civil Code) apply.

According to national rules on limitation for this type of liability cases, the limitation period starts the day after the claimant became aware of (i) the damage, and (ii) the responsible person. Kone had submitted that this was the case after the Commission had published its press release concerning the adoption of the Decision stating that it had imposed fines on Kone and the other addressees of the Decision (on 21 February 2007). Alternatively, Kone proposed that limitation started at least when the Decision was published on the Commission’s website (on 4 March 2008) or ultimately on the date that the summary of the Decision was published in the Official Journal of the EU (on 26 March 2008). 

The limitation rules require subjective knowledge of damage and the responsible party, however, the Court of Appeal ruled that it is not necessary to establish knowledge at the level of each individual assignor. Knowledge can be derived from relevant facts and circumstances, provided that SECC can file a rebuttal by submitting counter evidence. On that basis, the Appellate Court ruled that the press release provided insufficient information to acquire the requisite knowledge, but that the published Decision or at least the publication of the summary in the Official Journal was sufficient. As a consequence, certain claims were deemed time barred.

Another interesting point is that SECC alleged – referring to the EU Competition law doctrine of the economic entity – that an action to interrupt limitation by one party in the economic entity is sufficient to interrupt limitation for all parties in that economic entity. The Appellate Court dismissed that notion. According to the Court of Appeal, under civil law, the right to compensation exists only for legal persons and not also for economic entities. Each legal person that considers that it suffered loss should individually take the requisite actions if it wishes to interrupt limitation. That is in line with the principle of legal certainty as it would otherwise not be foreseeable for defendants which possible claims may still come.

Required evidence of loss to establish liability

One of the criteria to establish liability and refer the case to the quantification of damages phase is that there should be a likely possibility that the claimant suffered loss as a result of the established tortuous act (de mogelijkheid van schade moet aannemelijk zijn).

The Court of Appeal established (on the basis of the Decision) that the tort consisted in an overall scheme to share and regulate the market. Therefore, the Court considered it sufficient if SECC could demonstrate for each assignor that it conducted at least one transaction (i.e. directly or indirectly purchased goods or services) with one of addressees of the Decision during the infringement period.

Also on the point of loss, SECC alleged (again on the basis of EU law and the Skanska-judgment of the European Court of Justice) that it is sufficient if one party in the economic entity could demonstrate that it suffered loss for all parties to be admitted to the quantification of damages phase. The Appellate Court ruled, however, that the Skanska-judgment concerns liability of an economic entity for an infringement of competition law and not the right to compensation of injured parties. Rights to damages have to be considered under the national civil laws of the EU member states. 

On that basis the Court assessed which individual assignors had submitted sufficient evidence demonstrating that they purchased at least one product or service from the addressees of the Decision during the infringement period. The result was that of the initial 122 assignors, claims of 99 assignors were deemed either time barred or were dismissed on the basis of lack of evidence, leaving claims of 23 assignors in the proceedings. 

Umbrella pricing

SECC had submitted an economic report to the Court of Appeal indicating that further loss was suffered as a result of umbrella pricing (i.e., a general higher price level on the market due to the infringement) because of (i) the long duration of the infringement, (ii) the high market shares of the addressees of the Decision, and (iii) an increasing demand of products and services from third parties (not participating in the infringement). 

The Appellate Court held that it cannot be ruled out that umbrella pricing took place. However, according to the Court, that in itself is insufficient to hold Kone liable for alleged damages suffered by purchasers that bought products or services from parties that are not addressees of the Decision. Claimants should at least provide concrete indications of umbrella pricing. According to the Court, SECC could have provided examples where the assignors changed supplier after price increases by the addressees or demonstrate that price trends of parties that were not addressed in the Decision, where related to price increases by the addressees. General economic theory without concrete indicia is, however, insufficient according to the Court.

Lingering effects

In addition, SECC's claims concerning lingering effects (i.e. an infringement-related effect that causes prices to “linger” at a higher level after the infringement is terminated), were not substantiated with concrete evidence but only with economic theory. The Court of Appeal deemed that insufficient to establish liability on this point.

Pass on defense

Kone argued that any alleged damage was passed on by the claimants to the next level in the distribution chain. The Appellate Court ruled, however, that pass on is generally a matter that should be dealt with in the quantification phase. According to the Court, only if it can be prima facie established that pass on of the entire damage is evident, can liability be impacted in this phase of the proceedings. The evidentiary burden of proof lies with Kone, which, according to the Court of Appeal, did not succeed in providing sufficient evidence in this case. Pass on can, however, still play a part in the quantification of damages phase.

Lastly, an interesting point to note is that Kone had argued that the evidence of pass on lies mostly (if not all) within the domain of SECC (i.e. the assignors). Only they have the information about which costs were passed on to their customers. In that regard, Kone argued that the Court of Appeal should impose an aggravated standard of rebuttal (verzwaarde motiveringsplicht) on the claimant, i.e. requiring SECC to provide the indicia that the assignors have not charged the alleged damage to their purchasers. The Appellate Court found, however, that it was premature to rule on this aspect, as it would front load the debate about the concrete alleged damage of each individual assignor.

This article was published in the Competition Newsletter of February 2024. Other articles in this newsletter:

• On repeat but louder: the ACM’s 2024 priorities
• Settlement procedure and fine for vertical price fixing in Belgium