Dutch Supreme Court Dismisses Request for Clarification on Applicable Law in Air-Cargo Competition Damage Claims

Dutch Supreme Court Dismisses Request for Clarification on Applicable Law in Air-Cargo Competition Damage Claims

On 16 March 2018, the Dutch Supreme Court handed down its decision in a case referred to it by the Amsterdam District Court concerning the law to be applied in the mass damage claims brought against airline carriers accused of having operated a cartel in the air-cargo sector (click here for our previous report of this case).

As you might remember, in 2010*, the European Commission found eleven air carriers (including British Airways, Air France/KLM, Air Canada and Lufthansa) guilty of having fixed the prices for fuel and security surcharges on airfreight services. Following the adoption of this decision, many allegedly injured customers brought follow-on damages claims in multiple jurisdictions (including the Netherlands) against the air-carriers. The case at hand is one of those follow-on damages claims and was initiated before the Dutch courts by Stichting Cartel Competition, a litigation vehicle consolidating the claims and representing the interests of 266 freight customers.

In this case, the parties disagreed on the law that had to be applied by the judge: while the claimants argued that Dutch law was to be followed, the air carriers argued that the applicable law should be specific to each underlying claim and should be the law of the country where the underlying flight for this claim departed from.

Uncertain as to the answer to this question, the Amsterdam District Court (before which the issue was pending) stayed the proceedings and referred the question to the Dutch Supreme Court for a preliminary ruling.

Unfortunately, the Dutch Supreme Court refused to rule on this issue and dismissed the case on the basis, among others, that an appeal against the decision of the European Commission is still pending before the EU courts and that it is therefore not irreversibly decided whether the eleven air carriers had violated European competition law. Consequently, the Dutch Supreme Court found that there is no certainty that an answer to the preliminary question referred to it by the Amsterdam District Court was indispensable to solve the case. The Dutch Supreme Court therefore found that the preliminary reference by the Amsterdam District Court was inadmissible.

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At first glance, the Dutch Supreme Court’s decision appears to be a missed opportunity to clarify a blurry area of law. It is difficult not to view this as the Dutch Supreme Court sensing an opportunity to avoid taking a firm position on a very sensitive question. Indeed, the Dutch Supreme Court noted the ongoing litigation at European level, and may have been reluctant to wade into the legal and political fray.

* For the sake of completeness, it must be noted that European Commission adopted a new decision in March 2017 after the General Court of the European Union annulled the 2010 decision.