On June 23, 2021, the Rotterdam District Court issued two (final) judgments concerning claims for damages following the European Commission ruling decision on an alleged elevator cartel. The first procedure was initiated by Stichting Elevator Cartel Claim (” SECC ”), while the second was initiated by Stichting de Glazen Lift (” DGL ”). The protest vehicles sought a declaratory judgment that the elevator manufacturers had acted illegally and were liable for the damages suffered as a result of the breach of the agreement.
The Court ruled that the possibility of damage was made sufficiently plausible if there was at least evidence of a contract between each assignor and an elevator manufacturer during the infringement period. Employee records, maintenance logs or invoices without further justification are not enough. The Court furthermore asserted the Dutch limitation regime in the light of the European principle of effectiveness and the liability of Kone’s parent company.
Plausibility of damage
In previous judgments, the Rotterdam District Court has held that in order to allow referral to the separate damages assessment procedure, claim vehicles must present, for each assignor, the evidence that they have concluded at least one installation, purchase or maintenance contract relating to an elevator during the period of infringement. In both proceedings, the Court assessed by assignor whether the claim vehicles had reached this threshold.
In the DGL procedure, the Court tenuous that the claim vehicle has successfully submitted at least one contract for most of its ceding companies. For three of the cedants, DGL submitted photos of an elevator maintenance card, instead of a contract. The Court ruled that it could not be inferred from these photos of the elevator maintenance logs that the transferor had in fact entered into a contract with an elevator manufacturer during the period of infringement.
In the SECC proceedings, the outcome was different. Rotterdam District Court tenuous that SECC has not submitted relevant contracts for the majority of cedants; as such, it had failed to prove that its cedants were likely to have suffered any prejudice as a result of the infringement. Instead of submitting a relevant contract, SECC tried to prove the likelihood of damage by submitting statements from employees of the transferor, invoices for maintenance services or purchases, or (examples of) elevator maintenance logs. . According to the Court, these documents did not prove that an underlying contract had in fact been concluded between the assignor and an elevator manufacturer during the period of infringement. Consequently, the claims of 102 cedants (out of 122 cedants) were rejected.
In a previous provisional judgment, the Rotterdam District Court ruled that the limitation period began the day after February 21, 2007, ie the day of the European Commission’s decision. The SECC argued that the Dutch statute of limitations rules violate the principle of effectiveness of EU law. The Court rejected this argument, pointing out that Dutch law provides for the possibility of interrupting an ongoing limitation period. This allows a transferor to wait for a final judgment on appeal without running the risk of prescription. As such, the Dutch limitation system is not contrary to the principle of effectiveness of EU law. The Court then assessed by assignor whether or not the claims were time-barred. For 14 other cedants, the court ruled that the claims were time-barred.
Reduction of claims after settlements
The two claim vehicles have reached settlements with several other elevator manufacturers. Based on these settlements, Claim Vehicles filed a motion for the discontinuance of the lawsuits against the ceding manufacturers and for the reduction of the claims against the other defendants. Kone (and Otis) argued that because of this reduction in claim, the claim against them was no longer sufficiently concrete. The Rotterdam District Court rejected this argument, ruling that the debt reduction could not harm the interests of Kone and Otis. In addition, it considered that, for this phase of the procedure, the debt reductions were sufficiently concrete. A debate on the amount of damages and the exact internal quotas of each of the manufacturers will take place as part of the damages assessment procedure.
Liability of parent company Kone Oyj
Kone Oyj (Kone’s parent company) argued that it could not be held liable for the damages because it had not committed any fault itself. Kone Oyj also argued that there is no basis in civil law to apply the concept of European corporate law. The Rotterdam District Court rejected this argument because the Commission had concluded that Kone Oyj was part of the company which committed the infringement and, as such, was liable for the fine. Therefore, according to the Rotterdam District Court, he is also jointly and severally liable for any damage suffered by the assignors.
The next step is for claim vehicles to now initiate the damages assessment procedure for the remaining cedants.
The two judgments confirm that although the threshold for referral to the procedure for assessing damages is low, it is still a real threshold. The courts seriously assess, by assignor, whether the threshold is reached. Claimants who are unwilling or unable to sufficiently substantiate their claims cannot refer to the damages assessment procedure.