The tables have turned. In May last year, we reported about an important judgment of the Amsterdam District Court in the cartel damages action of Stichting Cartel Compensation (SCC) in respect of the Air Cargo cartel. That judgment (ECLI:NL:RBAMS:2019:3394) concerned the question of whether the Amsterdam District Court, as national court, was authorised to privately enforce the European prohibition on cartels in respect of flights from before certain dates.
The District Court itself answered this question in the affirmative. Nonetheless, the District Court decided to make a preliminary reference to the Court of Justice of the European Union. The reason for this preliminary reference was that both the English High Court of Justice (in Emerald Supplies Ltd & Ors v British Airways Plc) as well as the English Court of Appeal (in La Gaitana Farms SA & Ors v British Airways Plc) had come to a different conclusion in a parallel cartel damages action. Back then, the English courts saw no reason to make a preliminary reference themselves.
The 1 May 2019 judgment of the Amsterdam District Court has eventually lead to the judgment making the reference for a preliminary ruling of 18 September 2019 (ECLI:NL:RBAMS:2019:9966) in the procedure that is now pending before the Court of Justice under case number C-819/19 (Stichting Cartel Compensation and Others).
It is this judgment making the reference for a preliminary ruling that was decisive in the English cartel damages action of Daimler AG in respect of the Maritime Car Carriers cartel (Daimler AG v MOL (Europe Africa) Ltd & Ors). That case concerned the same question as before the Amsterdam District Court, but than in respect of maritime transport, rather than air cargo transport.
In their strike out application, the cartel members in Daimler took the position that that question had already been answered by the Court of Appeal in La Gaitana, which would be binding precedent for the High Court. The High Court acknowledges this, but considers that the point of law is undoubtedly a difficult one and that it cannot be said at this time that the question will eventually be answered in accordance with the judgment of the Court of Appeal in La Gaitana.
According to the High Court there is a real prospect that a judgment of the Court of Justice in the procedure of SCC will eventually overturn the judgment of the Court of Appeal in La Gaitana. In that respect the High Court considers that there is a real prospect that the Court of Justice will adopt SCC’s reasoning. There has been a reasoned reference to the Court of Justice in circumstances where the Amsterdam District Court clearly considered the point to be more than arguable and indeed reached the same conclusion. Undoubtedly that point is well arguable, said the High Court.
Despite the fact that the Court of Appeal previously did not want to make a preliminary reference, the judgment of the Amsterdam District Court has now convinced the High Court to do so, in order to allow the parties in Daimler to also argue their case before the Court of Justice. It is good to see that the English courts give consideration to judgments of European colleagues in mass tort claims. The procedure in Daimler is now pending before the Court of Justice under case number C-2/20. To be continued.
For more information, please contact Theodoor Verheij.