On 25 November 2020, the Amsterdam District Court (the “Court”) declined jurisdiction over all non-Dutch defendants (the “foreign defendants“) in proceedings for compensation of damage based partly on an infringement of Article 101 TFEU. The proceedings were initiated by four public utility companies from the Gulf States (“claimants“) against both Dutch and foreign defendants. The court rejected the claimants’ argument that jurisdiction over the foreign defendants could be based on Article 8(1) Brussels I Regulation (Recast) and found there was no sufficiently close connection between the claims against the Dutch defendants and those against the foreign defendants. Claimants’ argumentation relied inter alia on the Skanska judgment of the European Court of Justice (“ECJ”). The court ruled that Skanska is limited to cases of economic continuity. The authors of this article acted as defence counsel in these proceedings.
Facts and legal framework
The claimant public utility companies from Bahrein, Saudi Arabia, Kuwait and Oman initiated proceedings against various entities of the Prysmian, ABB and Nexans groups of companies, as well as against Pirelli and Goldman Sachs. The claimants argued that each of these defendants could be held responsible for an infringement of competition law on the market for high voltage power cables. They relied inter alia on a Decision of the European Commission in which the Commission established an infringement of Article 101 TFEU and Article 53 of the EEA Agreement (the “Decision”). None of the defendants domiciled in the Netherlands were, however, addressed by (or even mentioned in) the Decision.
Article 8(1) Brussels I (Recast) establishes jurisdiction over defendants based in other Member States (foreign defendants) if the claims against the domestic defendants (known as the “anchor defendants”) and the foreign defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. It is standard case law that, in order for judgments to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of fact and law.
No close connection between claims
The Court ruled there was no same situation of fact and law. Firstly, the Court noted that the European Commission had not found any direct or indirect participation of the Dutch defendants in the infringement. Furthermore, claimants barely submitted any facts to substantiate their assertion that the Dutch anchor defendants had themselves infringed the prohibition of Article 101 TFEU.
Secondly, the Court ruled that it does not follow from the Decision – nor from evidence provided in the proceedings – that any of the foreign defendants exercised decisive influence over their Dutch group companies, or vice versa. The Court stressed that ECJ case law relating to liability for an infringement of competition law always requires that there must be effective decisive influence on the legal person committing the infringement. The mere fact that the Dutch defendants are indirect subsidiaries or ‘sister companies’ of the addressees of the Decision does not imply that the Dutch defendants were somehow involved in the infringement of competition law.
The Court also rejected the claimants’ argumentation that was based on the ECJ’s Skanska judgment of 14 March 2019. Claimants argued that, since Article 101 TFEU addresses ‘undertakings’, under EU law an infringement of the cartel prohibition can be attributed to any legal entity within the same group of companies. The ECJ ruled in the Skanska judgment that the concept of an undertaking cannot have a different scope with regard to the imposition of fines (public enforcement) and in actions for damages for the infringement of competition rules (private enforcement). The Amsterdam District Court disagreed and noted that the ECJ’s considerations must be seen in the context of the preliminary questions referred to the ECJ and the concrete circumstances of the case, i.e. the case where a company could escape from their obligations through restructuring. It does not follow from the Skanska judgment that this doctrine can also be applied outside of those specific circumstances. Therefore, there is no support for the claimants’ view that they can address their claims for damages to any entity within the Prysmian, ABB and/or Nexans groups of companies, irrespective of whether those entities were actually involved in any of the infringing conduct.
In the absence of other applicable grounds for jurisdiction, the Court declined jurisdiction to hear the claims against the foreign defendants. This judgment puts a halt to unlimited forum shopping. The Amsterdam District Court made clear that the mere fact that the Dutch “anchor defendants” are subsidiaries or group companies of foreign corporate defendants who were found guilty of an infringement of Article 101 TFEU is not sufficient for Dutch courts to assume jurisdiction over those foreign defendants.