The Brussels Commercial Court has thrown out the European Commission's attempt to secure damages from four Belgian elevator cartel members for lack of proof of damages suffered.

Facts

In 2007 the European Commission imposed fines totalling €992 million on Kone, Otis, Schindler and ThyssenKrupp. The four elevator and escalator manufacturers were found guilty of participation in bid-rigging cartels for the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands. The companies were accused of having allocated tenders and other contracts with the aim of freezing market shares.

In 2008 the European Commission, representing the European Union, initiated an action before the Brussels Commercial Court as a private plaintiff seeking damages. The European Commission alleged that as an owner or occupant of buildings with elevators and escalators supplied and maintained by the four cartel members, the European Union had paid an overcharge as a result of the cartel.

Before the case could move forward, the question of whether the European Commission could legitimately initiate damages proceedings against undertakings which it had itself investigated and fined was referred to the European Court of Justice (ECJ) for a preliminary ruling. After the ECJ confirmed that this was possible, the Brussels Commercial Court subsequently ruled on the merits of the European Commission's damages claim.

Decision

The European Commission claimed €6 million in damages from all defendants. According to reports provided by the European Commission's economic expert, prices during the cartel period were inflated, with a sudden drop in prices after the cartel period ended. However, during the hearings the European Commission did not adequately explain how many contracts formed the basis of its claim. According to the defendants, the European Commission had clearly failed to provide evidence that could underpin its damages claim.

In a November 24 2014 judgment the Brussels Commercial Court dismissed the claim, as the European Commission had not provided sufficient evidence that it had actually sustained any damage. The court assessed the claim under the Belgian tort law in force in 2008, emphasising that under that law, the claimant was required to make a plausible – not merely hypothetical – case that it had sustained damage. The court also rejected the European Commission's request for the appointment of an expert to assess the damages, as there were serious doubts that the claim could succeed.

Comment

The outcome of this case could have looked very different had the EU Directive on Antitrust Damages Actions already been in force and implemented in Belgium, in particular because of the rebuttable presumption that a cartel causes harm.

The judgment is a setback for the European Commission in its quest to promote private enforcement of competition law. Private enforcement has been high on the European Commission's agenda as it tries to improve the legal framework for antitrust damages actions. By initiating this claim, the European Commission was trying to lead by example, but instead has highlighted some of the practical difficulties of bringing an antitrust damages claim under existing law – and that the basic elements of a tort must be proven individually if damages are to be obtained.

The European Commission is expected to appeal the court judgment.

Koen Platteau

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