Introduction
In 2021, the Court of Justice of the European Union’s (CJEU) Sumal judgement promised clarification on the issue of downward liability in private enforcement cases. Three (and a half) years later, the question remains whether the promise of clarity has been fulfilled. As a matter of fact, Dutch courts (surprisingly) seem to have struggled with applying Sumal’s criteria in practice, sometimes leading to inconsistent rulings and three preliminary references to the CJEU. This struggle is particularly evident in cases involving jurisdictional questions, where courts must determine whether Dutch subsidiaries can serve as ‘anchor defendants’ to establish jurisdiction over foreign parent companies.
The recent Power Cables and Carton Packaging cases before the CJEU highlight these ongoing challenges. With Advocate General Kokott’s opinion expected in April 2025, practitioners and courts alike await guidance on Sumal’s scope and application. This blog examines the application of Sumal in Dutch courts, analyzing key cases that demonstrate both the judgment’s potential and its pitfalls in practice. This blog will also provide a short summary of the recent Power Cables and Carton Packaging hearing which took place mid-January of this year.
Refresher: what was Sumal about?
The Sumal judgment originates from a preliminary question raised by the Provincial Court of Barcelona in Spain. In this case, Sumal filed a damages claim in Barcelona’s Commercial Court, seeking compensation from Mercedes Benz Trucks España for Daimler AG’s (Daimler) – the parent company of Mercedes Benz Trucks España – involvement in the truck cartel. The Barcelona Commercial Court dismissed Sumal’s claim, reasoning that Daimler, as the only entity explicitly named in the European Commission’s (EC) infringement decision, was solely liable for the violation. On appeal, Sumal challenged whether a damages claim could also be brought against wholly owned subsidiaries not specifically mentioned in the authorities’ decisions. This led the Provincial Court of Barcelona to stay the proceedings and refer preliminary questions to the CJEU.
The CJEU first reiterated established case law, as stated in amongst others the Skanska and Akzo judgements: the conduct of a subsidiary can be attributed to its parent company when the subsidiary lacks independent control over its market conduct and essentially carries out the parent company’s instructions. This connection is assessed on the basis of the economic, organizational, and legal links between the two entities, treating them as part of the same economic unit.
However, the central issue in Sumal concerned downward liability, i.e. whether a subsidiary could be held liable for damages stemming from its parent company’s anticompetitive conduct. The CJEU clarified that such liability is not automatic for all subsidiaries of a parent company targeted in an EC decision. The concept of an ‘undertaking’ is functional and must be assessed in light of the specific agreement or activity in question. The Sumal judgement was particularly novel in that it established that a parent company (for the purposes of private enforcement?) may be part of several economic units, for instance in the case of a conglomerate. This concept may still be somewhat confusing for competition lawyers that were educated about the undertaking-doctrine established in the Parker Pen judgement (C-73/95 P).
Therefore, the CJEU determined that holding a subsidiary liable for a parent company’s anticompetitive behavior requires the claimant to demonstrate that the subsidiary and parent company form a single economic unit. This involves i) proving the existence of economic, organizational and legal links between the two entities, as well as ii) proving the existence of a specific link between the subsidiary’s economic activity and the subject matter of the infringement.
When reading Sumal, it is important to be aware of what it does not require. In particular, Sumal does not require that the subsidiary committed the infringement, nor does the judgement state that the link between the infringement itself and the economic activities of the subsidiary. Sumal solely requires the link between the subject of the infringement (in broad terms) and the economic activity of the subsidiary. Moreover, it should only be applied in the case of downward liability (i.e. holding the subsidiary liable for the actions of the parent). In the case of upward liability (i.e. holding the parent liable for the actions of its subsidiary), the line of European case law on the concept of an economic unit, including Skanska and Akzo, is already sufficiently clear.
Finally, the CJEU’s judgement suggests that Sumal is especially relevant in the case of a conglomerate where there is a clear distinction between the activities of the different subsidiaries. As stated by the CJEU, Sumal intends to prevent a subsidiary within a group from being held liable for infringements “committed in the context of economic activities entirely unconnected to its own activity and in which they were in no way involved, even indirectly” (para 47). This suggests that subsidiaries that are related (even indirectly) to the subject of the infringement via their economic activity clearly belong to the same economic unit.
This judgment thus sets a significant precedent, potentially broadening the scope of civil liability in competition law cases.
Despite its significance, Sumal has also been the source of some confusion, as its application does not always appear straightforward. This is evident when examining recent Dutch case law, where it seems that Dutch judges are struggling to apply Sumal consistently in practice. This apparent confusion has led to two (almost) identical preliminary references before the CJEU in the Power Cables and Carton Packaging case, and subsequent staying of proceedings in anticipation of the CJEU’s preliminary ruling.
Preliminary references in Cardboard Packaging and Power Cables
The apparent complexity of applying Sumal has resulted in preliminary questions being raised in two pending cases before Dutch courts: the Power Cables case and the Cardboard Packaging case. Both cases concern the application of the Sumal judgment and Article 8(1) Brussels I bis Regulation and have therefore been addressed jointly by the CJEU.
In the Cardboard Packaging case, the Amsterdam-based holding company Smurfit Kappa International (SKI) acts as the ‘anchor defendant’ for the purposes of Article 8(1) Brussels I bis. Notably, SKI is not an addressee of the Italian competition authority’s decision. Unilever holds SKI liable as the parent company of SK Italia, which was addressed in the decision. The Amsterdam District Court (Amsterdam DC) assumed jurisdiction over claims against defendants domiciled outside the Netherlands, raising the question of whether a close connection exists between the claims against SKI and those against foreign defendants.
The Power Cables case also concerns jurisdictional issues regarding claims against Dutch and foreign defendants. Draka (the legal successor to Prysmian Cable Holding) serves as the Dutch anchor defendant, while other defendants include companies like Prysmian, ABB, and Nexans. While some parent companies were addressees of the EC’s decision, the Dutch subsidiaries were not. The Amsterdam DC initially ruled it had no jurisdiction over non-Dutch defendants, leading to an appeal. The case particularly concerns damage suffered outside the EEA and raises questions about the Amsterdam DC’s jurisdiction over foreign defendants based on their connection to Dutch entities.
Summary of the Power Cables and Carton Packaging hearing
The Power Cables and Carton Packaging hearing before the CJEU took place on the 23rd January 2025. As clarified, these two joined preliminary reference cases deal with fundamental questions about jurisdiction under Article 8(1) Brussels I bis Regulation and the Sumal-criteria. The cases center on whether Dutch courts have jurisdiction over non-Dutch defendants in cartel damages claims. The claimants in both cases argued that Dutch anchor defendants qualify as part of the same economic unit as foreign defendants, making jurisdiction foreseeable for these defendants. The defendants on the other hand countered that a broad interpretation of the Sumal judgement would enable unlimited forum shopping, resulting in ‘artificial’ jurisdiction creation in all Member States where companies have subsidiaries.
The hearing highlighted a crucial debate about the interpretation of EU competition law concepts in private enforcement. While claimants and the EC (as a third party) supported applying the Akzo-presumption to private damages claims and interpreting Sumal criteria more broadly, defendants pushed back on this. The EC also emphasized that the Sumal-test should especially be applied in cases concerning conglomerates. Moreover, the EC maintained that joint and several liability logically implies a close connection under Article 8(1) Brussels I bis, regardless of whether claims are follow-on or standalone. The cases particularly spotlight the role of intermediate holding companies as anchor defendants – a situation distinct from previous cases like MTB/Heineken where the anchor defendant was the ultimate parent company, and Sumal, where the subsidiary’s activities were related to the infringement.
The Opinion of AG Kokott is expected to be issued on the 3rd of April 2025
Miscellaneous application of Sumal before Dutch courts in recent years
Dutch courts have struggled in their application of Sumal, with some directly applying its principles (correctly) while others avoid them altogether. A number of these cases will be expanded on below.
Two notable cases where Sumal appears to be applied consistently are the MTB/Heineken case and the Wolfson/Google case.
In the case of MTB/Heineken, despite the preliminary reference by the Supreme Court to the CJEU, in October 2024, the Amsterdam DC ruled that Heineken and Athenian Breweries (AB) belonged to the same economic unit without applying the Sumal criteria to the case. This judgement is therefore separate from the preliminary reference before the CJEU which focused solely on jurisdiction. Since it concerned upwards liability (i.e. holding the parent liable for the actions of the subsidiary), the Amsterdam DC considered the Akzo-presumption to be sufficient to determine that they belonged to the same undertaking. Sumal, according to the Amsterdam DC, was only to be applied in cases concerning downwards liability. Therefore, by not applying Sumal in this instance, the Amsterdam DC stayed within the boundaries set by the CJEU with regards to upward liability. Based on an extensive amount of European case law on the concept of an undertaking and the facts of the case, the Amsterdam DC found that Heineken and AB are indeed part of the same economic unit and therefore the same undertaking within the meaning of competition law, making Heineken jointly and severally liable for the abuse of dominance committed by AB.
Another interesting judgement is the Google Shopping/Wolfson case before the Amsterdam DC. The Amsterdam DC applied Sumal to determine whether Google Netherlands, as a Dutch subsidiary of Google, formed part of the same economic unit as Google LLC and Alphabet. Although Google Netherlands was not addressed in the EC Google Shopping decision, the Amsterdam DC did not deem this to be necessary in the application of the Sumal criteria. Nor did the Amsterdam DC deem it necessary for a subsidiary to directly commit or be involved in the infringement itself; rather, the focus lies on the subject of the infringement, distinct from the infringement itself. The Amsterdam DC determined that the concrete link requirement from Sumal was satisfied, as Google Netherlands was involved in selling Google Shopping Ads by providing support services for that activity, which was the subject of the infringement. This case is one of the few cases whereby Sumal has been applied so clearly and concretely.
The struggle of Dutch courts to apply Sumal is apparent when comparing the approach of the Amsterdam DC in the Wolfson/Google case to its approach in the Stichting CSS Claims/Google, which also concerned a follow-on damages claim of the Google Shopping case. Although both cases deal with the same facts and legal issues, only the Wolfson case led to a successful application of the Sumal-criteria. In the case of Stichting CSS, apparently, in view of certain doubts the Amsterdam DC decided to stay proceedings due to the ongoing preliminary references in the Power Cables and Cardboard Packaging cases. The question remains whether the Amsterdam DC will follow the approach taken in Wolfson/Google following the pending preliminary references.
The Forex cartel case is also a clear example of the Dutch courts grappling with the application of Sumal. Here, the Amsterdam DC avoided applying Sumal altogether. Notably, the case involved 15 defendants, most of whom were based outside the EU, with only one Dutch entity, NatWest NV, serving as the potential anchor defendant. NatWest NV, however, was not an addressee of the EC’s decision, and no evidence connected it to the cartel. The Amsterdam DC addressed several issues, including that Natwest NV was not actually a subsidiary of Natwest Markets Plc during the infringement period, that the claimants appeared to have chosen Natwest NV solely to establish Dutch jurisdiction, and that the case differed from the Sumal precedent. The Amsterdam DC emphasised that the legal and factual situations of Natwest NV and the other defendants were fundamentally different, and that the liability of Natwest NV would require a separate analysis under Sumal. However, the Amsterdam DC also stated that the Sumal judgment’s precise scope remained uncertain, particularly regarding entities not directly implicated in the infringement. In the end, the Amsterdam DC does not apply Sumal at all and instead rules that there is an insufficient connection between the claims against NatWest NV and those against the other defendants to justify joint treatment.
On appeal, the Amsterdam Court of Appeal (Amsterdam CoA) noted that determining whether a ‘close connection’ exists under the applicable jurisdictional rules depends on the CJEU’s case law, including Sumal. However, given the ongoing preliminary references in the Power Cables case concerning Article 8(1) Brussels I bis Regulation, the Amsterdam CoA decided to stay the proceedings in the Forex case pending further guidance from the CJEU.
This reluctance is also echoed in the Stichting App Store Claims/Google case, whereby despite the claimant invoking Sumal to create jurisdiction in the Netherlands, the Amsterdam DC did not explicitly address it in its judgement. Instead, the jurisdictional issue was resolved using the Erfolgsort principle, making it unnecessary to stay the case nor rely on Sumal. As a reminder, based on Article 7(2) Brussels I bis, international and regional jurisdiction may also be established based on “the place where the harmful event occurred”. This can refer to either the place where the damage-causing action took place (Handlungsort) or the place where the damages manifest itself (Erfolgsort).
Conclusion
The application of Sumal across Dutch courts reveals a broader challenge in European competition law enforcement: balancing effective private enforcement with jurisdictional certainty. While Sumal aimed to clarify, and did clarify in our view, when subsidiaries could be held liable for their parent companies’ antitrust violations, it has instead created, surprisingly and unfortunately, a complex web of interpretations that vary by court and case, especially when intermediary holdings are involved.
The upcoming preliminary ruling in the Power Cables and Carton Packaging cases represents a valuable opportunity for the CJEU to provide further guidance.
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