On 24 November 2014, the Brussels Commercial Court ("the Court") dismissed, for lack of sufficient evidence, the first action for damages ever brought by the European Commission ("the Commission") on behalf of the European Union against members of a cartel.

This action was based on a decision of 21 February 2007 by which the European Commission had fined four companies, Kone, Otis, Schindler and ThyssenKrupp, a total of EUR 992 million for their participation in a cartel on the markets for the sale, installation, maintenance and renewal of lifts and escalators in Belgium, Germany, Luxembourg and The Netherlands (See, VBB on Competition Law, Volume 2007, No. 3, available at www.vbb.com). All appeals against this decision were dismissed by the General Court and the Court of Justice of the European Union (the "ECJ") (See, VBB on Competition Law, Volume 2011, No. 7, and Volume 2012, No. 10, available at www.vbb.com).

In June 2008, the European Commission brought an action for damages before the Court. Acting this time as an injured party, the Commission sought over EUR 6 million from the members of the cartel for the damage allegedly suffered from having had lifts and escalators of several EU buildings maintained and modernised at prices artificially raised by the cartel.

In an interim judgment dated 18 April 2011, the Court declared itself not to have jurisdiction for the part of the Commission's claim relating to lifts and escalators located in Luxembourg. The Court also decided to refer several questions to the ECJ for a preliminary ruling, with a view to determining whether the European Commission could legally seek damages on the basis of a decision which it had adopted itself in its capacity of competition authority. On 6 November 2012, the ECJ held that the full effectiveness of EU law requires that any natural or legal person, including the European Union, can claim compensation for harm suffered as a result of a violation of competition rules. The ECJ added that, although national jurisdictions are bound by the Commission's decisions on the existence of an infringement of competition law, they remain free to determine whether claimants have individually suffered a prejudice caused by the anticompetitive conduct (See, VBB on Belgian Business Law, Volume 2012, No. 12, available at www.vbb.com). Further to this judgment, the Court resumed the proceedings and ruled on the Commission's claim.

In its judgment, the Court recalled that, under Belgian law, any action for damages must satisfy three cumulative conditions: it must establish the existence of (i) misconduct by the defendant; (ii) damage suffered by the claimant; and (iii) a causal link between the misconduct and the damage (Article 1382, Civil Code). Although the misconduct had already been established by the Commission's 2007 decision finding a breach of EU competition law, the Court decided that the Commission had not sufficiently demonstrated the existence of its alleged damage and the causal link between such damage and the cartelists' anticompetitive behaviour.

The Court first stated that the existence of the alleged damage had to be established in order to obtain compensation, even though its exact scope can be unclear. The damage has to be determined to an extent compatible with the principle of legal certainty, i.e., with a "high degree of probability". In addition, the Court considered that the law applicable to this case was the Belgian legislation in force at the time the action had been brought. Therefore, contrary to the Commission's views, it could not rely on the (rebuttable) legal presumption that any cartel causes damage, a principle embraced by the recently adopted European Directive on antitrust damage actions, since this Directive has not yet been implemented under Belgian law (Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, O.J. (2014) L349/1).

Turning to the evidence, the Court considered that the Commission's submissions did not suffice to determine the situation in which the European Union would have found itself in the absence of the cartel, in order to compare the cartel prices with the supposed competitive prices. In addition, the Court noted that the cartelists engaged in bid-rigging rather than price fixing and that, at the time of the cartel, 30% of the market was held by non-cartelist undertakings, which maintained a level of price competition that the cartelists had to take into account. Therefore, it could not be assumed that the cartelists necessarily overcharged their customers. Furthermore, the Court found that the reports submitted by the Commission did not determine the number of contracts covered by its claim. According to the Court, these reports did not sufficiently prove that the European Union had effectively and certainly suffered specific damage since they did not show that the European Union had paid higher prices during the cartel's lifespan than after this period for the same product, the same level of service and under the same contractual conditions. The Court also dismissed as unsupported by any evidence the Commission's argument that the European Union had lost a real chance to buy cheaper lifts and escalators.

Finally, the Court found that the causal link between the cartel and the alleged damage had not been proven, especially since the European Union appeared to have expressly concluded a significant part of the maintenance contracts through private negotiations instead of public tenders, which de facto excluded competition.

The Court therefore dismissed the European Union's claim and ordered it to bear the costs of the procedure. The European Union can appeal the Court's judgment before the Brussels Court of Appeal.

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