On 17 July 2013, the District Court of Rotterdam ruled in an interim decision on jurisdiction in an antitrust 'follow-on' litigation case between Stichting Elevator Cartel Claim and Kone and ThyssenKrupp (C/10/390424 / HA ZA 11-2071). The Court rejected jurisdiction with regard to claims against non-Dutch subsidiaries of Kone and ThyssenKrupp.
Kone and ThyssenKrupp were fined by the European Commission for four separate infringements on the elevator and escalator market, relating to the national markets in the Netherlands, Belgium, Luxembourg and Germany. Stichting Elevator Cartel Claim is a foundation which represents various parties that claim to be harmed by the alleged infringements. The foundation instituted claims against the ultimate parent companies of the Kone and ThyssenKrupp groups and against the national subsidiaries that were directly involved in the infringements according to the Commission decision.
The Court ruled that it has jurisdiction to assess the claims against the Dutch subsidiary of ThyssenKrupp as it is established within the judicial district of the Rotterdam court. The Rotterdam Court also found that it had jurisdiction over the Dutch subsidiary of Kone given that Kone did not dispute jurisdiction in that regard.
The Court holds it does not have jurisdiction over the non-Dutch subsidiaries of ThyssenKrupp and Kone as the claims against these entities do not have the required close relationship to the claims against the Dutch subsidiaries. The Court considers that the Commission decision relates to four national infringements regarding the national subsidiaries of ThyssenKrupp and Kone. These four national infringements have different characteristics with regard to their nature, duration and the products involved. In addition, the applicable civil law will most likely also be different per infringement. Consequently, the claims relating to the alleged infringements in Belgium, Luxembourg and Germany against the non-Dutch subsidiaries do not have a sufficiently close relationship to the claim relating to the alleged infringement in the Netherlands against the Dutch subsidiaries. Therefore, the Court cannot assume jurisdiction on this basis. The Court also cannot assume jurisdiction on the basis of the location of the tort, given that neither the Handlungsort nor the Erfolgsort are in the judicial district of the Rotterdam district court.
The Court does partly assume jurisdiction for the claims against the parent companies of Kone and ThyssenKrupp. The court considers that Stichting Elevator Cartel Claim holds the parent companies,inter alia, liable for the alleged infringement in the Netherlands by their Dutch subsidiaries. If the Court would not assume jurisdiction in relation to parent company liability for the Dutch infringements there would be a risk of contradictory decisions, which should be prevented. The Court however rejects jurisdiction for the claims against the parent companies for the non-Dutch infringements.
The Court does not decide whether the parent companies can actually be held liable in civil proceedings for an infringement by a subsidiary. Parent company civil liability is not a question of jurisdiction and should be answered at a later stage of the proceedings.
The practical effect of the decision is that the Court may only assess the claims relating to the alleged infringement in the Netherlands, and not the claims relating to the alleged infringements in Belgium, Luxembourg and Germany.