Martijn van de Hel represents a lessor of retail properties in an appeal by the bankrupt department store Hudson's Bay regarding an alleged cartel.
Hudson's Bay claimed before the District Court of Amsterdam that the landlords from which it leased retail premises conspired about guarantees that Hudson’s Bay had issued for its rental obligations. If so, the leases must be terminated, according to Hudson’s Bay. For more (background) information see Het Parool, Het Financieele Dagblad and NU.nl.
Hudson’s Bay requested the Amsterdam District Court to summon no fewer than 43 parties to testify about its allegations. All defendants opposed Hudson's Bay's request. The District Court of Amsterdam followed the defendants in their positions and rejected the application. The court rejected that request. In the court’s opinion, Hudson’s Bay’s request had been insufficiently substantiated and was partly incorrectly. The court furthermore found that the request “is of an ill-considered nature, lacks proper substantiation on crucial points and is incoherent.” Hudson’s Bay had referred, for instance, to abuse of a dominant position as a possible basis for its claim, an allegation that is incompatible with its other allegation of cartel conduct. Hudson’s Bay had not provided any substantiation whatsoever of the latter accusation.
In assessing the request, the District Court of Amsterdam also considered Hudson's Bay's position during the negotiations. Hudson’s Bay had a relatively large amount of information at its disposal as it was the only prospective tenant. Moreover, Hudson’s Bay expressed its suspicion that the landlords had acted in breach of competition law only after it had been declared bankrupt, not during the negotiations. The District Court of Amsterdam found that “in these circumstances, each of the grounds developed in case law for the rejection of a request for a preliminary hearing of witnesses is present” and denied the request.
Hudson's Bay has lodged an appeal against the judgment of the District Court of Amsterdam. The appeal will be handled this year.
