On 4 June 2014, the Amsterdam District Court declared itself competent to rule on antitrust damages claims brought by claim vehicle CDC against various producers of sodium chlorate. If upheld on appeal, it is likely that the Netherlands will become an even more attractive forum for claimants than it already is.
Following a Commission decision finding an infringement in the EEA market for sodium chlorate (the "SC Decision"), CDC purchased the alleged damages claims of several purchasers of sodium chlorate. It subsequently sued a number of the addressees of the SC Decision, i.e. Arkema (based in France) Eka (based in Sweden), Kemira (based in Finland), and Akzo Nobel (based in the Netherlands). In preliminary proceedings, the defendants disputed, amongst others, the Amsterdam District Court's jurisdiction.
First and foremost, Arkema, Eka and Kemira argued that the Court could not base its jurisdiction on Article 6(1) of the Brussels I Regulation because the connection with the case against anchor defendant Akzo Nobel is not sufficiently close. In this context, they emphasized that the Commission had not addressed the SC Decision to Akzo Nobel on the basis of its own conduct but merely on the basis of the "presumption of decisive influence". This presumption allows the Commission to fine a parent company for an infringement committed by its 100% subsidiary. The Amsterdam District Court, however, disagreed. While the Court acknowledged that Akzo Nobel's position as a parent company might differ from the position of the other defendants, for purposes of jurisdiction it sufficed that CDC alleged that Akzo Nobel was guilty of the same conduct as the other defendants. Furthermore, the Court considered that a risk of irreconcilable judgments would arise if different courts would rule over the claims against Akzo Nobel and the other defendants.
In the alternative, the defendants relied on arbitration clauses and choice-of-forum clauses in the supply agreements between Arkema, Eka and Kemira and their customers (CDC's assignors). The Court also rejected this line of argument, holding that the wording of these clauses was not sufficiently broad to encompass damage claims based on competition law infringements.
In Dutch civil procedure, the default rule is that decisions of this nature cannot be appealed until the court has issued its final decision on the merits. However, in view of the parties' interests in the outcome of the case, the Amsterdam District Court has granted the parties permission to file an interim appeal against its decision. If an appeal is filed, the Amsterdam Court of Appeal will likely have the benefit of being able to consider the implications of the decision of the Court of Justice in case C-352/13. In that case, a Dortmund regional court has asked preliminary questions on the application of both Article 6(1) Brussels I Regulation and arbitration clauses in antitrust damage cases. The Advocate General's opinion on these preliminary questions is expected on 23 October 2014.