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Court decisions in key jurisdictions

ICC COMPENDIUM OF

ANTITRUST DAMAGES ACTIONS

2

ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS

©2021, International Chamber of Commerce (ICC)

This chapter is part of the ICC Compendium of Antitrust Damages Actions (2021) published by ICC.

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International Chamber of Commerce 33-43 avenue du Président Wilson 75116 Paris France

ICC Publication No. KS101E

INTERNATIONAL CHAMBER OF COMMERCE (ICC) 3

BELGIUM

Introduction

This chapter is part of the ICC Compendium of Antitrust Damages Actions (the “Compendium”) which can be read in full on the ICC website at www.iccwbo.org.

Designed to provide decision-makers with a comparative overview of the issues most frequently arising in private antitrust litigation in key jurisdictions, the Compendium includes an unprecedented collection of decisions issued in the same jurisdictions. This database is the essential complement to the overviews for a comparative approach and will allow a better understanding of the rules presented in the compendium. Each case summary will provide users with a brief description of the facts of the case and outline the solutions brought by the courts to the issues raised by the case with regard to the topics addressed in the overviews. Rather than performing keyword searches through the common online databases in each jurisdiction, antitrust practitioners and enforcers will have all key decisions at hand. Courts will be able to see what other courts in other jurisdictions have decided on a given issue, which may contribute to a greater consistency and, within the European Union, to enhance integration. This compendium also intends to provide competition authorities with a general view on the consequences of their decisions.

Methodology for the selection of cases

In Belgium, the decisions and case law of the national courts are only published in legal journals. In addition, only selected cases are published. Therefore, there is a general lack of information as regards the use of damages claims in court, the amounts claimed, and main obstacles for a successful claims for damages for competition law infringements in Belgium.

The following cases were selected on the basis of a review relevant legal journals.

http://www.iccwbo.org

INTERNATIONAL CHAMBER OF COMMERCE (ICC)4


Country: Belgium

Case Name and Number: Review Toepassingen van Communicatie BVBA / De Schepper J. and

Raad voor de Mededinging (15-2-2008)

Date of judgment: 15 February 2008

Economic activity (NACE Code): M.71.1.1 — Architectural activities

Court: Court of Appeal, Gent Was pass on raised (yes/no)? No

Claimants: Claimant (not named) (If in EU) Was the EU Damages Directive referred to/relied upon (and if so, for procedural or substantive provisions)? No

Defendants: De Schepper (association of

undertakings)

Were damages awarded (if so, how much and to whom)? If not, why not (e.g. lack of standing, causal link)? Was there another outcome or remedy? Yes.

Damages of EUR 4,289 were awarded to

Claimant

Is/was the case subject to appeal (yes/pending/no)? If yes, briefly describe current status/outcome: No

Amount of damages initially requested: Not mentioned

Key Legal issues:

• Mistake as a ground for avoidance of a

contract on the basis of a competition

law infringement that the consumer

was unaware of at time of conclusion

of the contract

Is the dispute likely to be settled privately? No

Direct or indirect claims? Direct Method of calculation of damages: Not

mentioned (although it is mentioned that

the calculation was simply made by the

judge).

Individual or collective claims? Individual Name and contact details of lawyer who has drafted summary: Gerrit Oosterhuis,

Partner, Houthoff, g.oosterhuis@houthoff.

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BELGIUM

Follow-on (EC or NCA?) or stand-alone? Standalone. Interestingly, after

this decision, a complaint was filed to

the Belgian Competition Authority and

after investigation, the association of

undertakings was held responsible for

the infringement at hand (although it

could not be fined due to restrictions in

the law at the time for associations of

undertakings).

Brief summary of facts

An association of undertakings (De Schepper) agreed on a certain amount of ‘honorary wages’ based on a fixed percentage of costs for an architectural project: the deontological norm. Claimant agreed on the 12% fee, as established in the norm, unaware that it infringed competition law. When Defendant claimed payment of the fee, Claimant refused and submitted that the norm was illegal and that therefore the contract could be avoided on the ground of mistake.

Brief summary of judgment

Claimant is entitled to damages, because it was found that this agreement on the deontological norm is an infringement of Article 2(1) Act on the Protection of Economic Competition. The fact that Defendant sent an annex with the deontological standard together with the agreement, even though Claimant expressly rejected the same deontological norm in the contract, pressurised Claimant to believe that this norm entailed an obligation. Claimant was unaware of the illegality of the norm at time of conclusion of the contract, and therefore, the contract can be avoided on the ground of mistake.



Country: Belgium

Case Name and Number: Europese Commissie/Otis e.a. (A.R. A/08/06816) (24-11-2014)

Date of judgment: 24 November 2014

Economic activity (NACE Code): C.28.22 — Manufacture of lifting and handling equipment

Court: Commercial Court, Brussels Was pass on raised (yes/no)? No

Claimants: European Union (specifically

the European Commission)

(If in EU) Was the EU Damages Directive referred to/relied upon (and if so, for procedural or substantive provisions)?

No. The Court refers to the Proposal for

the EU Damages Directive, but expressly

rejects application thereof, since the

Directive was not signed into law at the

time of initiation of the proceedings before

the Court.

Defendants: Otis, Kone, Schindler, Thyssen

Krupp

Were damages awarded (if so, how much and to whom)? If not, why not (e.g. lack of standing, causal link)? Was there another outcome or remedy? No.

The Court decided Claimant insufficiently

proved its damages and the causal link.


Amount of damages initially requested: EUR 6,134,451

Key Legal issues:

• Substantiation of damages and a

causal link


Direct or indirect claims? Direct Method of calculation of damages: Not

relevant in this case since no damages

were awarded.



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Follow-on (EC or NCA?) or stand-alone?

Follow — on (EC, Case COMP/E-138.823)


BELGIUM


Four manufacturers of elevators concluded price-fixing agreements in Belgium for new elevator systems and maintenance contracts between 1996 and 2004. The cartelists divided the market by allocating tenders and maintenance contracts. This infringement formed the basis for the claim for damages by the European Commission, that had entered into maintenance contracts for its elevators with the infringing parties.


The claim for damages was dismissed. Under Belgian law, Claimant must provide proof in order for the Court to establish the wrongful act, the damage incurred, and the causal link between the two. A Commission decision that establishes an infringement of then article 81 TEC is sufficient proof of the wrongful act. The legal test for the existence and extent of damages is that there must be a high degree of probability, to the extent that one does not have to seriously consider the opposite. It is in principle sufficient that there is a condition sine qua non link between the ground for liability and the damages. The Commission’s decision relied upon does not confirm a price-increasing effect of the infringement. It merely establishes that the agreements between defendants were aimed at price inflation, but it does not prove that they also succeeded in this goal. Moreover, the ‘normal circumstances’ also do not prove this, as was confirmed in a study ordered by the Commission, that in cases of bid-rigging, an effect on the price cannot be assumed. The Court thus concluded that insufficient evidence is provided to conclude that damages have been incurred as a result of the mistake.



Country: Belgium

Case Name and Number: Belgische Staat/liftenproducenten (24-04-2015)

Date of judgment: 24 April 2015

Economic activity (NACE Code): C.28.22 — Manufacture of lifting and handling equipment

Court: Commercial Court, Brussels Was pass on raised (yes/no)? No

Claimants: Belgische Staat/Regie der

Gebouwen


No. The Court refers to the Proposal for

the EU Damages Directive, but expressly

rejects application thereof, since the

Directive was not transposed into

Belgian law at the time of initiation of the

proceedings before the Court.

Defendants: Otis, Kone, Schindler, Thyssen

Krupp

Were damages awarded (if so, how much and to whom)? If not, why not (e.g. lack of standing, causal link)? Was there another outcome or remedy? No. The

Court decided the claimant insufficiently

proved its damages and the causal link.

Is/was the case subject to appeal (yes/pending/no)? If yes, briefly describe current status/outcome: Unclear

Amount of damages initially requested: The specific amount of damages was not

mentioned but the claimants appointed

an independent (and specialised) party

(Oxera) to support the claim.

Key Legal issues:

• Substantiation of damages and a

causal link


Direct or indirect claims? Direct Method of calculation of damages: Irrelevant as no damages were awarded.



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BELGIUM


Follow-on (EC, Case COMP/E-1/38.823)


Four manufacturers of elevators concluded price-fixing agreements in Belgium for new elevator systems and maintenance contracts between 1996 and 2004. The cartelists divided the market by allocating tenders and maintenance contracts. This infringement formed the basis for the claim for damages by the Belgian State and Flemish Community that had bought elevators and had entered into maintenance contracts for its elevators with the infringing parties.


It is for the claimant to provide evidence for the fact that they paid an increased price for the products/services. The Commission decision at hand did not establish a price-increasing agreement, but merely a market-sharing agreement. Therefore, it does not prove the wrongful act. The claimant does not provide concrete evidence for the sine qua non link required and the damage. It should have pointed to specific contracts in which it incurred the damages. The Court thus concluded that the claimant had not proven that the agreements with the manufacturers led to damages.



Country: Belgium

Case Name and Number: Herman Verboven e.a. / Honda Motor Europe Logistics (23-3-2017)

Date of judgment: 23 March 2017

Economic activity (NACE Code): G.45 — Wholesale and retail trade and repair of motor vehicles

and motorcycles

Court: Commercial Court, Gent Was pass on raised (yes/no)? Yes

Claimants: Herman Verboven, BVBA

Occasiemarkt, NV Erx, BVBA Fraussen, NV

Delta Motorcycle, NV Motorshop Desmet

R


Yes

Defendants: Honda Motor Europe

Logistics

Were damages awarded (if so, how much and to whom)? If not, why not (e.g. lack of standing, causal link)? Was there another outcome or remedy? Yes.

Damages of EUR 20,000 were awarded to

each of the six claimants.


Amount of damages initially requested: The claimants only requested the

compensation of their damage. They

also requested expert advice in order to

calculate the damage they suffered.

Key Legal issues:

• Limitation period

• Subjective element of a mistake

• Passing-on


Direct or indirect claims? Direct Method of calculation of damages: Calculation ex aequo et bono (this is a

method used when the amount of the

damages cannot be calculated with

precision. In this scenario, the judge may

use his discretion to provide a damages

amount that is considered “fair”.



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BELGIUM


Follow-on (NCA, Decision of the BCA of 31

January 1999, B.S. 13 March 1999. p. 8279-

8281)


The claimants are independent importers of motorcycles of different brands. Honda required importers to obtain a certificate of conformity from Honda for each motorcycle they wanted to import, to ensure that each motorcycle was in conformity with the approved standard type. It only allowed authorised Honda distributors to request a certificate. This system of certification was in place from 1991 until 1996.


The Belgian Competition Authority found that the Honda entity that issued certificates in Belgium, abused its dominant position by operating its certification system. The claimants filed for follow-on damages. The limitation period does not start to run until there is a final and conclusive decision that establishes a competition infringement. Since an objective wrongfulness was established, the defendant must prove that there is no subjective element but failed to do so. The damages are for example caused by the fact that Honda employed a limitation of two motorcycles per application for a certificate, and by the obligation to subject the motorcycle to a sound test. According to the court, the claimants sufficiently proved that the infringement was the cause of the damages incurred. The damages could not be calculated or estimated and were thus established on grounds of fairness.

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ICC Publication: KS101E

ICC COMPENDIUM OF

ANTITRUST DAMAGES ACTIONS

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