Dutch Supreme Court rules in antitrust damages case in the elevator sector

Introduction

On 28 November 2025, the Dutch Supreme Court (the "Supreme Court") issued two parallel judgments in antitrust follow-on damages proceedings concerning the elevator and escalator markets (ECLI:NL:HR:2025:1761 and ECLI:NL:HR:2025:1764). Both proceedings followed a 2007 decision by the European Commission (“Decision”), imposing fines on manufacturers of elevators and escalators, including Kone B.V. ("Kone") and Otis B.V. (“Otis”), for infringing European competition law rules by exchanging competitively sensitive information and bid rigging. The follow-on damages proceedings were brought by two claim vehicles – Stichting Elevator Cartel Claim (“SECC”) and Stichting De Glazen Lift (“DGL”) – that bundled the alleged damages claims of a large number of individual parties, using the 'assignment model'. 

Questions regarding Dutch law and EU law

In its judgments, the Supreme Court addressed various questions of Dutch law and EU law, including questions on the scope of joint and several liability for competition law infringements, on statutory limitation, on the (in-) applicability of the EU concept of the 'single economic unit' to claimant entities and on the threshold for referral to separate quantum proceedings.

Question 1: Statutory limitation

The first question of EU law concerns the commencement of the limitation period. In the proceedings between SECC and Kone, the Court of Appeal ruled that some of the claims had been brought after completion of the applicable limitation period and that those claims had therefore become time barred. SECC complained that the Court of Appeal had misinterpreted the subjective nature of the knowledge referred to in Article 3:310 sub 1 of the Dutch Civil Code. The Court of Appeal had found that the injured parties had sufficient (actual) knowledge of their damages claims from the moment of the publication of the public version of the Decision on the Commission's website, or the publication of the summary of the Decision in the Official Journal of the EU. 

The Supreme Court held that in doing so, the Court of Appeal had not failed to recognise the subjective nature of the required knowledge, since the Court of Appeal's ruling essentially implied that from the moment the information in (the summary of) the Decision had become public, there is a presumption that the claimants were actually aware of their potential claims for damages. The Supreme Court thus rejected SECC’s complaint. 

This is in line with the CJEU’s decision in Heureka/Google (C-605/21), in which the CJEU ruled that "in the context of actions for damages brought following a final decision of the Commission, the connection to an objective factor such as the publication in the Official Journal of the European Union of the summary of that decision is in the interests of legal certainty, in that it makes it possible, in so far as the infringement concerned has come to an end, in principle, to establish the moment from which the limitation period begins to run, both for undertakings that have participated in a cartel and for injured parties" (see Heureka/Google (C-605/21), no. 69). Nevertheless, it cannot be ruled out that an injured party may well before the publication of the summary of a Commission decision in the Official Journal become aware of the information necessary to bring a claim for damages, but it is up to the person against whom the claim is brought to prove that this is the case. 

Question 2: The (in-)applicability of the EU concept of the 'single economic unit' to claimant entities

The second question addressed by the Dutch Supreme Court concerns the EU law concept of an ‘undertaking’ and – more specifically – whether that concept can also be applied to claimants’ side. In one of SECC’s complaints, SECC challenged the Court of Appeal's ruling that an act of interruption by an entity that is part of a group or undertaking, does not also interrupt the limitation period with regard to other entities of that group or undertaking. 

The Supreme Court ruled that SECC’s complaint failed. According to the Supreme Court, CJEU case law regarding the concept of an undertaking – including cases like Skanska (C-724/17) and Sumal (C-882/19) – concerns the question against which legal entity a claim for compensation for cartel damage can be brought. That case law does not concern the question of which company can bring a claim for compensation for cartel damage and, prior to that, on whose behalf the limitation period for such a legal action can be interrupted. 

We note that this decision appears to be in line with the CJEU's ruling in MOL (C-425/22). In that ruling, the CJEU decided that the EU notion of an ‘undertaking’ (or: ‘single economic unit’) does not determine the “place where the damage occurred”, within the meaning of Article 7(2) Brussels I-bis, on the side of the claimant(s). While the context is different, this seems to confirm that the concept of an ‘undertaking’ cannot be applied to the claimants’ side. 

Question 3: Joint and several liability

The third question of EU law concerns the scope of the joint and several liability of the infringing elevator and escalator manufacturers. The cross-appeal in the DGL proceedings challenged the Court of Appeal's ruling that joint and several liability of a party for an infringement of Article 101 TFEU is limited to the period during which that party actually participated in the infringement.

Again, this ground for appeal did not find favour with the Dutch Supreme Court. The Supreme Court upheld the Court of Appeal's ruling and ruled that Kone cannot be held jointly and severally liable for the harmful consequences of the conduct of the other elevator manufacturers in the infringement in the period prior to Kone’s participation.

Question 4: Threshold for referral to quantum proceedings

In addition to the aforementioned EU law issues that are of specific relevance to the antitrust litigation community, the Supreme Court also addressed the relevant threshold for referral to separate quantum proceedings under Dutch civil procedure. The latter issue is of more general relevance to (certain types of) collective redress in the Netherlands (regardless whether they are based on an antitrust infringement). 

In short, under Dutch civil procedure, a claimant who seeks damages does not have to include a demand for a specific monetary sum in its claim. Instead, claimants can request that the defendant(s) be ordered to pay damages, the quantum of which is to be determined in separate proceedings ("schadevergoeding op te maken bij staat"). The threshold for such an order is relatively low. Provided that the liability of the defendant(s) can be established, all a claimant needs to show is that there is a (real) possibility that he or she suffered a recoverable loss. 

On appeal to the Supreme Court, Kone complained that the lower courts ruled too easily that DGL had met the threshold for a referral to quantum proceedings. In Kone’s view, such a referral can be made only on a transaction-by-transaction basis, which implies that DGL should have substantiated and documented each and every elevator transaction on which it based its claims for damages. The Supreme Court disagreed. According to the Supreme Court, Dutch courts can refer cases to (separate) quantum proceedings for the assessment of damages without a need to 'itemize' those damages at the time of the referral. In light of the fact that Kone had been found guilty of a competition law infringement and given the lower courts’ finding that the infringement is likely to have caused harm (generally), all that was required to refer the claims of individual injured parties to quantum proceedings is that DGL could substantiate at least one relevant transaction that occurred within the period of the infringement per underlying claimant/assignor. After all, the existence of one such transaction is sufficient for a Dutch court to conclude that Kone is liable (in principle) vis-à-vis the relevant claimant/assignor and that there is (at least) a possibility that the claimant/assignor suffered a recoverable loss. In the separate quantum proceedings, the parties will have ample opportunity to further debate the existence or non-existence of other relevant elevator transactions and, of course, broader questions concerning the quantum of damages (if any).

Conclusion

In its decisions dated 28 November 2025, the Supreme Court upheld the Court of Appeal’s earlier decisions that Kone (ECLI:NL:HR:2025:1761 and ECLI:NL:HR:2025:1764) and Otis (ECLI:NL:HR:2025:1761) are jointly and severally liable for any damages caused by the competition law infringements on the elevator and escalator markets. Those decisions are now final and binding. The proceedings will now proceed in separate quantum proceedings, in which the parties will have the opportunity to debate the existence or non-existence of the relevant elevator transactions and broader questions concerning the quantum of damages (if any).