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 specifically found that there was no concrete evidence or any indication that Heineken had been involved in the alleged abuse of dominance of AB. Despite this finding, MTB initiated a civil claim against both AB and Heineken in Amsterdam. MTB argued that its claim against AB was 'closely connected' with its claim against Heineken so that the court could assume jurisdiction under the doctrine of the 'anchor defendant' (Article 8(1) Brussel I Regulation Recast). AB and Heineken subsequently raised a preliminary motion arguing that there was no such close connection.
The District Court of Amsterdam first ruled that MTB’s alleged claims against Heineken and AB were governed by Greek law. Under Greek law, a legal entity is not liable in principle for unlawful acts committed by another legal entity, even if both entities belong to the same group of companies. Therefore, for a successful claim against Heineken it was necessary to establish that Heineken itself was guilty of unlawful conduct, or of involvement in the alleged unlawful conduct of AB. MTB, however, failed to allege sufficiently concrete conduct on the part of Heineken and put forward ‘almost no concrete factual allegations regarding Heineken’s involvement in the alleged competition law infringement’. Given that that European Union law also does not dictate that entities that are part of the same ‘undertaking’ are liable in civil law to pay damages in the absence of a binding decision establishing their actual involvement in a competition law infringement, that concept could also not be used to substantiate the alleged 'connectivity'. For these reasons, the Court declined jurisdiction over the claims against AB. It nevertheless assumed jurisdiction over the claims against Heineken, given that Heineken is based in Amsterdam (Article 4(1) Brussels I Regulation Recast).
The Court's judgment shows that plaintiffs have to properly substantiate their alleged claims if they seek to rely on the 'anchor defendant'-doctrine. Dutch courts will not assume jurisdiction based merely on the allegations of plaintiffs.
This article was published in the Competition Law Newsletter of June 2018. Other articles in this newsletter:
European Court of Justice rules EY did not violate stand-still obligation in Danish merger
European Commission must reassess Lufthansa's request to waive merger commitments
Dutch Appeal Court drastically reduces cartel fine Dutch construction company
Belgian Supreme Court confirms illegality of dawn raids due to the lack of a warrant