On 27 November 2013, the District Court of Central Netherlands declared itself competent to rule on antitrust damages claims against five Dutch elevator manufacturers and their parent companies. The judgment demonstrates that Dutch courts will not readily decline jurisdiction over antitrust follow-on damages claims.
Following a Commission decision in 2007 finding an infringement in the Dutch elevator and escalator industry, East West Debt ("EWD") purchased and bundled the alleged claims of a large number of elevator purchasers. It then started proceedings against the alleged infringers as well as their ultimate parent companies. The defendants subsequently filed preliminary motions, arguing that the District Court of Central Netherlands was not competent to hear EWD's claim.
Primarily, the defendants argued that the court lacked jurisdiction due to the fact that during the infringement period it was a general practice in the industry to contractually agree upon arbitration. However, the defendants could not trace all the relevant contracts and could thus only submit examples, because EWD had not made it clear for which projects it claimed damages. In addition, there was no other way to ascertain the projects to which the claims pertained given that the turnover figures presented by EWD did not match the figures in the administration of the elevator manufacturers. The Court, however, considered that the burden of proving the existence of binding arbitration clauses rested firmly on the elevator manufacturers. Any possible failure of EWD to meet its burden of proof in the main proceedings could not excuse the defendants from not meeting theirs in the preliminary proceedings. The Court thus concluded that by submitting only examples of contracts, the defendants had failed to prove that the parties had agreed on arbitration.
Furthermore, most defendants claimed that the Court could not derive competence from Article 6(1) of the Brussels I Regulation to hear the claim against the foreign (ultimate) parent companies, because the connection with the case against the two anchor defendants was not sufficiently close. The Court, however, considered that separate proceedings would create a risk of irreconcilable judgments, as EWD based its claim on a group tort for which all defendants could potentially be held jointly and severally liable.
