These judgments stand out in the field of antitrust damages litigation. The claimants’ buyer-side cartel damages claims were unprecedented. The Court adopted a fact-based, realistic approach by carefully assessing the relevant facts and extensive economic evidence that had been submitted and concluded, following the hearings on the merits at the first instance, that it is implausible that the infringement established by the European Commission had caused any damage to these major petrochemical companies. The European Commission had found that the ethylene purchasers Celanese, Clariant, Vestolit and Westlake exchanged sensitive commercial and pricing-related information related to the purchase of ethylene in Belgium, France, Germany and the Netherlands, with the aim of exerting downward pressure on the Monthly Contract Price (the “MCP”), a benchmark price often used as an element of the ethylene pricing formula. The claimants alleged that the infringement resulted in a lower MCP and, consequently, lower ethylene prices. However, the European Commission did not assess the alleged effects of the conduct, nor did it consider whether the parties had ultimately succeeded in depressing the MCP. For these reasons, the Court looked critically at whether any effect could follow from the facts or the economic analyses at all and concluded that harm caused by the infringement was not plausible.
The Court did not find the economic evidence and theories of harm submitted by the claimants persuasive. The MCP was determined through a complex process that also required the consent of at least two ethylene suppliers. Moreover, the MCP could be established without any involvement of the four defendants, which in itself made it implausible that the infringement had any effect. The Court considered it implausible that major petrochemical companies such as the claimants would not have noticed an alleged reduction of the MCP, given that they employ specialists who closely monitor market developments. It also remained uncontested by the claimants that their margins had in fact increased substantially during the infringement period, whereas one would expect the opposite margin effect in the event of actual harm.
Five similar proceedings of comparable magnitude remain pending in the Netherlands, and six in Germany.
The Houthoff team, led by Rick Cornelissen and including Paul Sluijter and Davide Ballestrero, represented Orbia and Vestolit in close collaboration with the excellent team at White & Case, led by Mark Gidley (Washington, D.C.) and Mark Powell (Brussels), as well as Vestolit’s German counsel Johann Brück and economists from Analysis Group (Chris Feige and Arjun Dasrupta), Oxera (Phlipp Schliffke and Nicole Rosenboom), and Case Associates (Cento Veljanovski and Carine Lange). We all owe this result to the great dedication and active engagement of Orbia and Vestolit’s in-house legal team, led by Sheldon Hirt, Jorge Pruneda, and Andrea DeShazo.
These proceedings received extensive coverage in the Dutch and international media, including the Amsterdam District Court’s press release, Het Financieele Dagblad and the Global Competition Review.
