Ruling at first instance, the Brussels Commercial Court has dismissed in its entirety a claim for damages by the Belgian and Flemish state authorities against four members of an elevator cartel. The claimants alleged that the cartel had overcharged them by 12.3%, resulting in damages that totalled almost €17 million. However, the Brussels Commercial Court ruled that the claimants had failed to provide sufficient proof that the cartel had caused them any damage.

Facts

In 2007 the European Commission imposed fines totalling €992 million on Kone, Otis, Schindler and ThyssenKrupp. The four elevator and escalator producers were found to have participated in bid-rigging cartels for the installation and maintenance of elevators and escalators in Belgium, Germany, Luxembourg and the Netherlands. The companies were found to have allocated tenders and other contracts among themselves, with the aim of freezing market shares.

As the owners and occupants of buildings with elevators and escalators supplied and maintained by the four cartel members, the Belgian and Flemish state authorities initiated damages actions before the Brussels Commercial Court in February 2012.

With reference to the European Commission's decision, the claimants argued that it was fair to presume that the cartel had inflated its prices. They submitted a report by an economic expert to support their claims. The report suggested that prices for elevator and escalator installation and maintenance were inflated during the cartel period by 12.3%, resulting in total damages of almost €17 million.

Decision

In a judgment dated April 24 2015 the court dismissed the claims for lack of proof of damage. The decision stated that the cartel members had engaged in a market-sharing cartel. It did not establish the existence of a price-fixing cartel. The court did not consider it a given that a market-sharing cartel leads to overcharging. In order to obtain damages, claimants must present their own evidence to prove that they incurred specific and concrete harm in relation to the contracts that they concluded with the cartel members during the cartel period. They cannot simply rely on the European Commission's decision or a presumption of harm.

This is the second case in which the courts have rejected damages claims against the four elevator cartel members. In November 2014 the Brussels Commercial Court threw out the European Commission's attempt to secure damages from Kone, Otis, Schindler and ThyssenKrupp, also for lack of proof that it had suffered damage. This case is under appeal.

Comment

The outcome of these cases could have been different had the EU Directive on Antitrust Damages Actions (2014/104/EC) already been in force and implemented in Belgium – specifically, because of the rebuttable presumption it contains that a cartel causes harm. In the interim, the Brussels Commercial Court is sending a strong signal to damages claimants that in order to obtain damages, they should provide sufficient evidence that they sustained damage. It remains to be seen whether the claimants will appeal the decision, as the European Commission has done.

For further information on this topic please contact Koen Platteau or Geneviève Borremans at Simmons & Simmons LLP by telephone (+32 2 542 0960) or email (koen.platteau@simmons-simmons.com or genevieve.borremans@simmons-simmons.com). The Simmons & Simmons LLP website can be accessed at www.simmons-simmons.com.

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