On 24 April 2015, the Dutch-speaking Commercial Court of Brussels dismissed a claim for damages filed by the Belgian State, the Buildings Public Authority, the Flemish Community and the Flemish Region against the members of the lifts and escalators cartel. The cartel members had been fined by the European Commission on 21 February 2007.
The Belgian authorities’ lawsuit closely followed the action for damages filed by the European Union against the members of the same cartel before another chamber of the same Court. This claim was dismissed in November 2014 for lack of evidence (an appeal against this judgment is currently pending), and it seems that the Belgian authorities’ lawsuit stumbled over the same hurdle.
The Court first recalled that, pursuant to Article 1382 of the Belgian Civil Code, an action for damages requires the proof of: (i) misconduct; (ii) harm; and (iii) a causal link between the two.
Turning on the issue of misconduct, the Court acknowledged that the European Commission established, in its 2007 decision, the existence of misconduct in the form of a market-allocation cartel. However, the Court noted that market-allocation practices differ from price-fixing practices and that the European Commission decision did not prove the existence of misconduct consisting in price overcharges on the Belgian market.
In addition, the Court reiterated that the claimants had to prove the existence of the harm suffered and a causal link between the anti-competitive practices and the harm in order to obtain compensation. More specifically, the Court noted that, since EU Directive 2014/104/EU on antitrust damages actions is not yet applicable under Belgian law, there is no presumption that cartels cause harm (see VBB on Competition Law, Volume 2014, No. 11, available at www.vbb.com).
The Court made it clear that, in order to meet the criteria set out in Article 1382 of the Belgian Civil Code, the harm must be certain, i.e., “highly probable”. The Court found, however, that the claims did not meet this standard of proof.
In particular, the Court noted that the European Commission’s Practical Guide quantifying harm in actions for damages based on breaches of Article 101 or 102 of TFEU, which was used as evidence of the claimants’ harm, was based on a 2009 Oxera report which contradicted the claimants’ position since it confirmed that, in market-allocation cases, non-cartel members present on the market could exert a competitive pressure on prices. Foreign case law was not considered conclusive either as it concerned different cases, some regarding price-fixing cartels rather than market-allocation ones. The Court also criticised the fact that the invoices submitted by the claimants were not clearly linked to the 29 contracts allegedly affected by the cartel, and highlighted that non-cartelist suppliers, which had “important and significant market shares in Belgium” in 2003, also won calls for tenders, which placed the cartelists’ prices under competitive pressure.
Also, the Court observed that the Oxera report of 27 October 2014 entitled “Calculation of the harm caused by the lifts cartel”, on which the claimants based the quantification of their harm, presumed the existence of such harm and did not prove it. In any event, the Court found that this report contained a series of methodological flaws which made it unreliable. These flaws concerned, inter alia: the selection of the contracts allegedly subject to an overcharge; the decision to examine the invoices separately from the contracts; the impossibility to form a view on the size of the sample required to obtain reliable results; the application of a percentage of overcharge to the value of the entire installation (while this percentage is only calculated on the basis of maintenance contracts); and the absence of an inflationary correction mechanism.
Finally, the Court refused to appoint an expert to determine the harm allegedly suffered, since there was no indication that the claimants had actually paid an overcharge due to the existence of the market-allocation cartel.
As a result, the Court dismissed in their entirety the claims of the Belgian State, the Buildings Public Authority, the Flemish Region and the Flemish Community.
Together with the November 2014 judgment dismissing the European Union’s damages claim, this judgment demonstrates that one cannot simply base a claim for damages on a European Commission cartel decision: the claimant must have a strong case showing that the anti-competitive practices constituted a misconduct that actually harmed its interests within the meaning of Article 1382 of the Belgian Civil Code.
To conclude, it should be noted that, once implemented into Belgian law, EU Directive 2014/104/EU on antitrust damages actions will make it easier for future claimants to seek damages, since the Directive creates a (rebuttable) presumption that cartel infringements cause harm. The Directive must be implemented by 27 December 2016 at the latest.