The Amsterdam District Court ruled that the proceedings in the case of Equilib vs. KLM should be stayed, until the pending appeals against the European Commission's Decision 39.258 of 9 November 2009 (air freight) (the “Decision”) have fully run their course (LJN: BV8444).
In 2009, Equilib, a vehicle set up by the litigation funder Claim Funding International, brought a civil damage case (a "follow-on" case) against KLM, Air France and Martinair in the Netherlands. Equilib's damage claims are based on the Decision, in which the European Commission held that eleven air freight carriers had participated in an infringement of European competition law which affected air freight services within the European Economic area. All carriers except one appealed against the Decision, seeking annulment of the Decision. The appeals are currently pending before the General Court in Luxembourg.
In the case before the District Court, the defendant air freight carriers requested that the Court order a stay of the proceedings until it is clear whether the Decision will acquire res judicata-effect. The carriers relied on the Masterfoods decision (C-344/98, 14 December 2000), in which the European Court of Justice held "when the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted" (see also Article 16 of Regulation 1/2003).
On 7 March 2012, the Court ruled that the proceedings will be stayed until the air freight carriers' appeals against the Decision have run their full course. In reaching this decision, the Court observed that Equilib's case against the carriers relies heavily on the findings of the European Commission. The various appeals that are currently pending may result in a partial or full annulment of the Decision. A debate on the merits of the case without awaiting the outcome of the appeals would therefore "in fact boil down to an exchange of the parties' presumptions and expectations regarding the outcome of the proceedings before the European courts". Furthermore, the Court noted that in the context of the damage case it will not be sufficient to establish whether the air freight carriers were involved in a competition law infringement. Instead, it will be necessary to assess the specific conduct of the air freight carriers, "the relevant time periods, locations, services and shipments", in order to establish if and to what extent each of the many alleged victims of the infringement has been harmed by this conduct. Equilib did not deny that the outcome of the appeal proceedings before the European courts could influence this assessment. For reasons of "procedural economy", the Court decided to stay the proceedings with immediate effect, until the Decision (or a subsequent judgment by a European court) has acquired res judicata-effect.