On 24 September 2014, the District Court of Rotterdam dismissed claims by Europe Container Terminals ("ECT") that the Port of Rotterdam Authority abused its dominant position causing over EUR 1 billion in damage. The allegation of dominance was insufficiently substantiated.
ECT, an operator of container terminals, had claimed that the Port of Rotterdam Authority unlawfully created substantial overcapacity on the market for container terminals by developing two additional terminals in violation of promises and agreements with ECT. In addition, ECT would have been discriminated against in comparison to its competitors in the port. This behaviour could be qualified as abuse of dominance according to ECT.
The Court considered that the relevant product market is the market for the leasing of harbour plots. With regard to the geographic market, the Court notes that ECT disputed the Port of Rotterdam Authority's statements that this was the Hamburg – Le Havre range but did not clarify what it considered to be the actual geographic market.
The Court rejected ECT's argument that the Port of Rotterdam Authority could behave independently from its competitors, indicating a dominant position, by virtue of ECT being "locked" in the Rotterdam port on the basis of long-term leasing agreements and substantial investments in the harbour. The Court referred to a 2005 report from the Dutch Competition Authority ("ACM"), which concluded that the Port of Rotterdam Authority did not have a dominant position. In this report, the ACM considered that, contrary to ECT's statements, long-term leasing agreements protected the renters of harbour plots from price increases, and against the risk of termination of the agreement before investments were recouped. In addition, the evidence in the case file showed that ECT and its competitors were large international firms with considerable countervailing buyer power. For these reasons, the Court decided that ECT insufficiently substantiated that the Port of Rotterdam Authority was dominant on the market for the leasing of harbour plots.
In line with an earlier ruling of the Dutch Supreme Court of 21 December 2012 (IATA/ANVR), this judgment shows that the threshold for stand-alone civil claims based on competition law is relatively high and that such claims need to be well-substantiated.