On 24 April 2015, the Commercial Court in Brussels dismissed the Belgian State’s request for compensation for damages allegedly caused by four elevator companies for overcharges for the maintenance of elevators.The claim followed the Commission decision of 21 February 2007 finding a market sharing agreement that violated EU competition law. The Commercial Court judgment follows a similar decision of the same court relating to a claim for damages from the European Commission (see: Newsletter December 2014).
The Commercial Court considered that the 2007 Commission decision established that the four lift producers committed “a fault” under Belgian tort law but it does not constitute evidence of the application of a surcharge in the contracts between the plaintiffs and the four elevator manufacturers.
The Commercial Court analyzed whether there was damage and a causal link. It concluded that the Belgian State had not established that it suffered any damage in connection with the contracts for the elevators concerned. The conclusion was reached on the basis of current Belgian legislation. The Court considered that the regime envisaged in the European Directive on Antitrust Damages Actions is not yet the relevant legislative framework.
The Commercial Court stated that the 2007 decision of the Commission did not establish a price increasing effect. Referring to the specific nature of a cartel existing of market allocation (as in the elevators cartel) and the presence of public tenders, no automatic price effect of the cartel could be assumed. The Commercial Court also referred to the participation in such tenders by elevator producers which were not part of the cartel. The Court also rejected claims based on the Belgian public procurement law to impose an additional sanction. Such sanction could amount to three times the overcharge. The Court held that it has no jurisdiction to rule on this claim and that in any event it was unfounded as no overcharge was proven.