The jurisdiction of the Dutch courts in private enforcement: broad, but not unlimited

17 Mar 2021, estimated reading time 7 minutes

The Netherlands is an attractive jurisdiction for the private enforcement of European competition law. This is partly because the Dutch courts assume jurisdiction rather quickly in that type of cases. A recent judgment of the Amsterdam Court of Appeal confirms that the jurisdiction of the Dutch courts is broad indeed. It is not unlimited, however, as evidenced by a recent judgment of the Amsterdam District Court in a different case. Interesting is that in both cases the Skanska judgment of the European Court of Justice was invoked.

Amsterdam Court of Appeal: broad jurisdiction

A claim of a Greek brewing company against another Greek brewing company, based on abuse of dominance on the Greek beer market as established in a decision of the Greek competition authority, to which Greek law applies. Yet, the Amsterdam Court of Appeal assumes jurisdiction of the Dutch courts, by virtue of the Dutch anchor defendant Heineken.

Macedonian Thrace Brewery (MTB) had summoned Athenian Brewery (AB) together with its (great-)grandparent company Heineken. MTB holds AB and Heineken jointly and severally liable for the damages MTB incurred as a result of the abuse by AB of its dominance on the Greek beer market.

The District Court had declined jurisdiction in respect of MTB's claim on AB. According to the District Court, MTB's claim on Heineken would not be sufficiently closely connected with MTB's claim on AB within the meaning of Article 8 paragraph 1 of the Brussels I Regulation (recast).

The Court of Appeal notes that MTB's reproaches against Heineken solely concern acts on the Greek beer market. In respect of those acts, MTB reproaches AB and Heineken the same. MTB's claims against Heineken and AB based on these acts are also identical. Hence, in respect of the facts, the positions of Heineken and AB are the same, said the Court of Appeal.

The Dutch courts have in any event jurisdiction in respect of MTB's claim on Heineken and will adjudicate that claim in this case. When ruling on MTB's reproaches against Heineken, the Dutch courts will, according to the Court of Appeal, have no choice but to also rule on the acts of AB and the meaning of the decision of the Greek competition authority. Only after all requirements for awarding MTB's claim on AB have been met, the question arises whether the additional requirements for awarding MTB's claim on Heineken have also been met, said the Court of Appeal.

If the same acts of AB and the decision of the Greek competition authority would be brought before the Greek courts to rule on MTB's claim on AB, it cannot be ruled out that the Greek courts would come to a different conclusion than the Dutch courts when ruling on MTB's claim on Heineken. That could give rise to the situation in which the acts of AB constitute abuse of dominance according to one court, whereas the other court holds the opposite.

In view of the risk of such irreconcilable judgments resulting from separate proceedings, the Court of Appeal holds that the Dutch courts also have jurisdiction in respect of MTB's claim on AB.

The fact that the position of Heineken is not the same as that of the party against whom the action was brought in the Skanska case, as a result of which Heineken is not automatically liable if AB is, is for the same reason not of sufficient interest, said the Court of Appeal. At this moment, it cannot be ruled out with sufficient certainty that AB and Heineken should for the purposes of competition law be considered as one undertaking.

According to the Court of Appeal, it was also reasonably foreseeable for AB that it would be summoned to appear before the Dutch courts. After all, MTB's reproaches against AB are directly linked to AB forming part of the Heineken group and the sale of beer under the Heineken brand, the rights on which are held by Heineken, said the Court of Appeal.

The Court of Appeal refers the case back to the District Court, noting that it seems obvious that the claims against Heineken and AB will be heard together.

Amsterdam District Court: no unlimited jurisdiction

The case before the Amsterdam District Court concerned the cartel damages claims of four utility companies from Bahrain, Saudi Arabia, Kuwait and Oman in respect of the so-called power cables cartel. The claimants had summoned fifteen defendants:

• six of these were established in the Netherlands, but not an addressee of the decision of the European Commission (the Decision). They were used as anchor defendants.
• three of these were referred to in the Decision as infringer. None of them was established in the Netherlands, however.
• five of these were held liable in the Decision as parent company of an infringer. None of them was established in the Netherlands either.
• finally, there was one defendant that was not an addressee of the Decision and neither established in the Netherlands.

It goes without saying that the District Court assumed jurisdiction in respect of the Dutch anchor defendants. The question then arose whether the claims on the anchor defendants are sufficiently closely connected with the claims on the foreign infringers and parent companies, which would allow the District Court to assume jurisdiction in respect of these other defendants as well. The claimants had advanced three arguments to that end.

First, the claimants argued that the Dutch anchor defendants would themselves also have participated in the cartel. After all, the cartel was also active in the Netherlands and the anchor defendants were also active on the power cables market, said the claimants. Furthermore, in the Decision reference was made to a number of Dutch cable projects.

The District Court notes that in the Decision, the European Commission has not established any direct or indirect participation in the cartel by the Dutch anchor defendants. Also from decisions of other competition authorities, it does not follow that the anchor defendants have been the subject of any investigation or were directly or indirectly involved in the cartel. Hence, the conclusion is that the claimants had hardly provided any factual substantiation of their argument. The fact that the cartel was also active in the Netherlands and that group companies of the Dutch anchor defendants were involved in the cartel does not mean that the anchor defendants themselves were thus also involved in the cartel. The claimants had, for example, not asserted that they would have contracted with the Dutch anchor defendants or that the anchor defendants would have provided them with cables or services that would have been affected by the cartel.

Second, the claimants pointed at the group links between the Dutch anchor defendants and the foreign infringers and parent companies. These links would give rise to the possibility of exercising decisive influence, which would justify the attribution of liability.

The District Court notes that from the Decision, it does not follow that the foreign parent companies have exercised decisive influence on the Dutch anchor defendants, or the other way around. Also otherwise, there is no evidence of a situation in which the infringers or the parent companies could exercise decisive influence over the market conduct of the anchor defendants, or the other way round. The claimants had neither substantiated this. It had not been made clear by the claimants that and if so, how the Dutch anchor defendants would have exercised decisive influence on the market conduct of the foreign infringers or parent companies that would justify the attribution of liability to them. Also the assertion that the anchor defendants would have contributed to the cartel had not been factually substantiated by the claimants.

Finally, the claimants invoked the Skanska judgment. On the basis thereof, a specific distinct reproach against the Dutch anchor defendants would not be required, because they form part of the same undertaking as the foreign infringers and parent companies.

According to the District Court, the Skanska judgment must be understood in the context of the question referred for a preliminary ruling and the judgment of the European Court of Justice is limited to that situation. Hence, the Skanska judgment does not support the claimants' position that they could choose which group companies they can hold liable, regardless of whether those entities were involved in the cartel, said the District Court.

Furthermore, the District Court reiterates that the claimants had not advanced any facts or circumstances from which it might be concluded that the foreign infringers and parent companies could exercise decisive influence over the market conduct of the Dutch anchor defendants, or the other way around. The claimants had not put forward anything in respect of the corporate structure and the decision-making on strategy, the appointment of directors and finances that would constitute a possibility to exercise influence over the strategy and market conduct. The claimants had only argued the liability of the Dutch anchor defendants by virtue of them forming part of a group within which some entities have been considered as infringers. And that is insufficient, said the District Court.

In view of the above, the District Court declines jurisdiction in respect of the cartel damages claims on the foreign infringers and the parent companies. Hence, the jurisdiction of the Dutch courts is not unlimited indeed. However, on the basis of the judgment of the District Court it is hard to avoid the impression that the conclusion could have been different had the claimants better substantiated their arguments.

We understand that the claimants have appealed the judgment of the District Court.

The Sumal case: clarity on the scope of the Skansa judgment?

The question whether and to what extent it follows from the Skanska judgment that other companies that form part of a group within which some entities have been considered as infringers are also liable for the damages incurred as a result of the infringement has actually been referred for a preliminary ruling to the European Court of Justice in the Sumal case.

One of the questions referred is the question whether and if so, under what conditions a subsidiary that is not an addressee of a decision of the European Commission can also be held liable if its parent company is an addressee (reversed parental liability).

To be continued.