In 2008 the European Commission introduced a claim before the Brussels Commercial Court against the elevator manufacturers Kone, Schindler, Otis and ThyssenKrupp for damages the European Union allegedly suffered as a result of these companies’ participation in an agreement to allocate the installation and maintenance of lifts and escalators among participants. This damage claim followed the Commission’s decision of February 2007 which fined these four elevator manufacturers 990 million euro for their participation in the infringement (in the interim the overall quantum of the fine has been reduced to 830 million euro following the successful appeal of ThyssenKrupp before the General Court of the European Union).
In April 2011, the Brussels Commercial Court referred several questions for a preliminary ruling to the European Court of Justice, including as to whether the role of the Commission as enforcer of European competition law precluded it from introducing a damage claim against participants in an infringement it had itself established. During a hearing on 14 March 2012, the European Court of Justice scrutinized the effectiveness of the ringfencing measures the Commission has introduced to separate the persons involved in the investigation of the infringement from those pursuing the damages claim. The status of the Commission in the proceedings before the Court of Justice was also called into question in light of its being a concurrent party to the case before the referring court, and an "amicus curiae" before the Court of Justice. A ruling by the Court of Justice is expected later this year.
In the meantime, several other Belgian customers of the elevator manufacturers have introduced further damage claims before the Brussels Commercial Court.
Damage actions for cartel infringement are clearly on the rise in Belgium (see also Belgian Competition Law Report 2012/Q1) and this will make it increasingly difficult for companies to estimate and weigh the advantages and risks of leniency applications in cartel proceedings.