On 24 November 2014, the Commercial Court in Brussels dismissed the European Union’s request for compensation for damage caused to European institutions by four elevator companies as a result of these companies’ alleged overcharges for the maintenance of elevators following the Commission decision of 21 February 2007.

Referring to the judgment of the European Court of Justice of 6 November 2012, the Commercial Court recalled that the Commission may seek damages based on its own infringement decisions. It then rejected the request of the European Commission to have all contracts declared null and void because it considered that there was no sufficient evidence of fraud. Next, the Commercial Court considered that the 2007 Commission decision established that the four lift producers committed “a fault” under Belgian tort law, although the Commercial Court remained silent on whether any fault regarding the specific contracts at stake had been proven. The Commercial Court then analyzed whether there was damage and a causal link and concluded that the EU had not established that it had suffered any damage in connection with the maintenance contracts for the elevators concerned.

The Commercial Court came to that conclusion on the basis of current Belgian legislation, considering that the European Directive on Antitrust Damages Actions is not yet the relevant legislative framework. Applying the “counterfactual scenario” (i.e. the scenario where there would have been no infringement), the Commercial Court evaluated the indirect evidence of alleged damage that were submitted by the EU as follows:

  • The 2007 Decision of the Commission did not establish a price increasing effect.
  • Referring to the specific nature of cartels regarding market allocations (as was the case) and the presence of public tenders, the court held that no automatic price effect of the cartel could be assumed. The Commercial Court in this respect also referred to the presence of competing elevator producers on the market.
  • The economic study submitted by the Commission did not prove that the EU effectively suffered any certain and concrete damage. The Commercial Court referred to a number of errors in the reports (such as the inclusion of Luxembourg contracts for the analysis of the Belgian market and the limited selection of contracts).

The Court thereupon also rejected the EU’s request to have an expert appointed because the EU did not show sufficiently certain, concrete, and effective damage in the first place.