On 21 and 22 July 2015 respectively, two Dutch courts assumed jurisdiction in antitrust damages cases on the basis of Dutch “anchor defendants”. The courts rejected arguments in relation to an alleged lack of a close connection between claims, the abuse of civil procedural rules and forum clauses.
The first case, before the District Court of Amsterdam, concerned alleged infringements on the market for air cargo services. The claims were instituted by KLM, Martinair and Air France, who filed for a declaratory judgment that they were not liable to pay damages to DB Schenker. DB Schenker argued, inter alia, that the Brussels I regulation on international jurisdiction would not apply to declaratory judgments. Furthermore, DB Schenker argued that KLM, Martinair and Air France artificially created the forum by involving an Amsterdam subsidiary that had nothing to do with air cargo and that the claims against certain non-Dutch DB Schenker entities were not closely connected with the claims against the Dutch DB Schenker entities due to a difference in applicable law.
The District Court rejected DB Schenker's arguments and considered that on the basis of the Folien Fischerjudgment of the Court of Justice (Case C-133/11), the Brussels I regulation also applies to declaratory judgments. The Court considered that it had international jurisdiction, as it was undisputed that at least two DB Schenker entities that were active on the market for air cargo were established in the Netherlands. The fact that these two entities were established in the district of the Rotterdam Court (and not within the district of the Amsterdam Court), is not relevant for the question of international jurisdiction. The similarity between the claims warranted that they be handled together, and the applicability of different national law systems is not relevant in this respect.
In the same decision, the Court allowed KLM, Martinair and Air France to involve German claim vehicle Barnsdale in the proceedings. The Court considered this useful because DB Schenker stated to have assigned its claims to Barnsdale, which had instituted claims against other airlines in Germany. In the German proceedings, Barnsdale had also claimed compensation for damages from other airlines on the basis of joint and several liability that would have resulted from the purchase of air cargo services from KLM, Martinair and Air France.
In the second case, the Amsterdam Court of Appeal upheld a judgment of a lower court that a parent company can serve as an anchor defendant [see our July 2014 newsletter]. The case concerned claim vehicle CDC's suits against addressees of a European Commission decision in which an infringement was established on the market for sodium chlorate. According to CDC, the courts of the Netherlands have jurisdiction over the case because the claim was filed against the Dutch anchor defendant AkzoNobel together with the other (non-Dutch) addressees. Kemira opposed this.
The Court of Appeal rejected Kemira's argument that the claims against AkzoNobel were not closely connected with the claims against the other defendants because in the decision AkzoNobel was only held liable as a parent company (and not as a direct participant in the infringement). The Court also rejected the application of forum clauses in contracts between Kemira and its customers (CDC's assignors). Pointing to the recent case of the European Court of Justice in CDC/AkzoNobel [see our June 2015 newsletter], the Court of Appeal considered that forum clauses only referring to contractual disputes do not encompass tort claims based on alleged competition law infringements. This would be different, however, if the forum clauses referred to disputes relating to competition law infringements.
The cases once again confirm that Dutch courts consider themselves competent to rule on damage claims against all defendants if there is at least one Dutch "anchor defendant" and the claims against the non-Dutch defendants are closely connected with those against the Dutch “anchor(s)”.