On 20 July 2016, the District Court of the Middle-Netherlands dismissed a EUR 30 million antitrust damages action filed by claim vehicle East West Debt B.V. ("EWD") against five Dutch elevator manufacturers and their ultimate parent companies. From a competition law perspective, the judgment is particularly interesting because the District Court found that the fact that parent companies, which were fined by the Commission for infringements committed by their subsidiaries, does not necessarily result in their civil liability for damages resulting from that infringement.
EWD based its claim on a 2007 Commission Decision, in which the defendants were held liable for a competition law infringement that took place on the Dutch elevator market. Five Dutch companies were fined for taking part in the infringement, while four of their ultimate parent companies were held liable for the fine on the basis of the "presumption of decisive influence". This presumption entails that if an (indirect) parent company owns 100% of the shares in a subsidiary, it is presumed to exercise decisive influence over the commercial behaviour of that subsidiary. Under EU competition law, legal responsibility for the infringement and the related fine can be attributed to both the subsidiary that actually participated in the cartel and the parent company or companies that exercised decisive influence over that subsidiary.
The District Court ruled that the presumption of decisive influence does not extend to parental liability for damages claims in the Netherlands. Dutch law, and not EU competition law, governs whether the "corporate veil" can be pierced. The Court also referred to the Court of Justice's judgment in Bolleré, in which the EU's highest court held that a parent company is not under an obligation to pay damages if it was not actually involved in the infringement itself. According to the District Court, EWD did not adduce sufficient evidence to prove the parent companies' involvement in the case at hand.
The District Court also found that EWD failed to provide the requisite evidence to support its claims vis-à-vis the Dutch subsidiaries. More specifically, the Court considered that EWD failed to show that elevators and related services were in fact purchased during the period in which the infringement took place. According to the judgment, EWD merely submitted a spread sheet containing the generic annual expenditure on elevators and related services, but did not specify to which agreements these amounts pertained, or under which conditions those agreements were concluded. The District Court also noted that EWD should have submitted the documents necessary to support its claims.
The District Court of the Middle-Netherlands is the first Dutch court to rule on whether under Dutch law parent companies can also incur civil liability for infringements committed by their subsidiaries. The judgment also shows that claim vehicles like EWD cannot rely on a Commission decision alone, but should at least be able to support their claims with documentary evidence.