On 25 February 2015, the District Court of Amsterdam (the "Court") delivered an interlocutory judgment in a dispute between two real estate associations (VBO makelaars and NVM) over their shared online real estate platform Funda.nl. VBO makelaars accuses NVM of abusing its dominant position via the platform that is owned by NVM.
It is safe to say Funda.nl is the most popular website for homebuyers in the Netherlands. The website aggregates the real estate offerings of the three largest real estate associations. Funda.nl is - indirectly - owned by the Dutch Association of Real Estate agents ("NVM"). VBO makelaars ("VBO") accuses the NVM of abusing its dominant position by applying unequal terms (under equal contractual obligations) to VBO.
The contractual relationship between VBO and NVM is set out in a cooperation agreement which differentiates between full and limited publication on the website. Limited publication is free of charge for all parties. For full publication, a monthly fee is paid by the individual members of the association. The fees paid by VBO agents, however, are considerably higher than the fees paid by NVM members.
Other inequalities concern the website functionality, which is not fully available to VBO members. Moreover, the underlying Funda database is only accessible by NVM agents. Lastly, the publications of VBO agents are always ranked below the real estate of the competing NVM agents. VBO claims that this unequal treatment constitutes an unlawful act as it is a violation of article 24 of the Dutch Competition Act ("Mw") and its European counterpart, article 102 TFEU.
In this interlocutory judgment, the Court concludes that VBO has fulfilled its obligation to provide sufficient (economic) facts and circumstances with regards to the relevant and geographical markets, the alleged dominant position and the alleged abuse. The Court deems it nevertheless expedient to obtain expert advice on the matter and therefore orders a personal appearance to discuss - inter alia - the following questions:
- What should be the role of the Commission working document concerning the quantification of actions for damages based on breaches of article 101 & 102 (SWD(2013) 205) in order to define the relevant markets and to assess market impact?
- What relevant conclusions should be drawn from the judgment of the Court of Justice of September 11, 2014, C67 /13, (Groupement des Cartes Bancaires)?
- What relevant conclusions should be drawn from the judgment of the Court of Justice of February 17, 2011, C-52 /09, (Teliasonera)?
To be continued.
Source: www.rechtspraak.nl, ECLI:NL:RBAMS:2015:897, 03-03-2015
Reproduced from Practical Law with the permission of the publishers (www.practicallaw.com).