Today, 10 March, the Amsterdam Appellate Court rendered judgment on the validity of the assignments in the cartel damages action of Stichting Cartel Compensation (SCC) in respect of the Air Cargo cartel (ECLI:NL:GHAMS:2020:713). These assignments concern the damages claims of purchasers of Air Cargo services that have incurred damages as a result of the cartel. Many Airlines colluded to increase prices inter alia by coordinating their action on surcharges for fuel.

The judgment makes clear that SCC as claimant does not have to prove the validity of the assignments. It is the first time that a Dutch court has decided this so clearly. In earlier cases about assignments, the issue was not addressed.

The Appellate Court follows the Amsterdam District Court (ECLI:NL:RBAMS:2017:5512) in its judgments that the assignments are valid in accordance with the law that applies to the assignment agreements. Unlike the District Court, the Appellate Court does not distinguish between the validity of the assignments in accordance with the law that applies to the assignment agreements and the law that applies to the claims that were assigned. The Appellate Court adopts a practical approach and decides the entire discussion against the background of the question whether the Airlines may assume that the assignments are valid and (thus) are able to pay SCC in discharge of their obligations.

The obligation to furnish facts and the burden of proof that the Airlines may assume that the assignments are valid is on SCC according to the Appellate Court. SCC has discharged this obligation by notifying the assignments to the Airlines and providing the Airlines with an excerpt from the assignment documentation. SCC’s obligation to furnish facts does not extend to the authority of the assignors to dispose of their damages claims nor to the authority of the signatories of the assignment documentation on behalf of the assignors to represent the assignors. Hence, SCC does not have to prove the validity of the assignments.

It is then up to the Airlines to substantiate their defence by arguing that and why the validity of the assignments should be questioned on reasonable grounds. However, the Airlines have not done so (or at least not sufficiently motivated). The mere fact that the Airlines do not have all the information on the basis of which the validity of the assignment in the relationship between the assignors and SCC can be determined is insufficient to substantiate any reasonable doubts as to the validity of the assignments, said the Appellate Court.

On this basis, the Appellate Court dismisses practically all complaints of the Airlines against the judgment of the District Court, whereby the Appellate Court also holds that the Dutch law prohibition on the ownership of collateral (the fiduciaverbod) does not apply here, that the Dutch law requirement of determinability (the bepaalbaarheidsvereiste) has been complied with, and that in accordance with Dutch law the assignments are not incompatible with public order or morality.

Interestingly, the Appellate Court also accepts SCC’s argument that if Dutch law applies to the claims of SCC, SCC is, on the basis of Section 119(1) of Book 3 of the Dutch Civil Code ('possession amounts to perfect title'), assumed to be the owner of the claims that it asserts have been assigned to it. As far as we know, it is the first time that a Dutch court has applied this Section to the possession of claims. Hence, another legal novelty for SCC.

For more information, please contact Theodoor Verheij.