Private enforcement in the Netherlands: an update

Implementation of the Directive on antitrust damages actions

Directive 2014/104/EU on antitrust damages actions (EU Damages Directive) was signed into law late in 2014. The EU Member States have to implement the EU Damages Directive by 27 December 2016.

On 08 June 2016, a bill was put forward in the Dutch House of Representatives (Tweede Kamer) regarding the implementation of the EU Damages Directive (Bill). The Bill should be adopted before 27 December 2016.

Various provisions of the EU Damages Directive need not to be implemented because Dutch law is already in line with it. As such, the Bill does not contain any provisions in relation to the right to full compensation, the rights of indirect customers to claim damages and actions for damages by claimants from different levels in the supply chain.

Although the provisions of the EU Damages Directive largely correspond with the principles of liability and compensation for damages applicable under Dutch law, the EU Damages Directive also provides for a number of specific exceptions. For example, these include exceptions to the obligation to produce exhibits, the prescription rules and the principle of joint and several liability in the event of there being several debtors. To implement these provisions of the EU Damages Directive, the Bill aims to introduce new and separate sections in the Dutch Civil Code and the Dutch Code of Civil Procedure.

The Bill only applies to damages actions in relation to infringements of EU competition law and infringements of Dutch competition law where it runs parallel to EU competition law. Damages actions in relation to infringements of Dutch competition law only are therefore currently excluded from the scope. However, the Dutch legislator is considering putting forward a separate and equivalent bill for purely national competition law infringements.

Two judgments on key legal questions

In two recent judgments the Dutch courts have ruled on some key legal questions.

Hoge Raad, 08 July 2016, TenneT v. ABB

In a judgment on 08 July 2016, the Dutch Supreme Court established that cartel members can rely on the passing-on defence in the Dutch courts to fend off damages claims from their direct customers.

The facts of the case date back to 2007, when the European Commission found ABB guilty of having participated in a cartel in the gas insulated switchgear sector. Subsequent to the Commission’s decision, TenneT, the Dutch grid operator, launched a damages action against ABB. TenneT claimed to have sustained damages because it bought a gas insulated switchgear installation from ABB during the cartel period. As a defence, ABB argued that TenneT did not sustain any damage, as it passed on the alleged overcharge to its customers. Overruling the judgment of the lower court, the Court of Appeal acknowledged in a landmark judgment the right of ABB to invoke the passing-on defence against TenneT’s claim for damages.

The Dutch Supreme Court has now passed final judgment on the matter by accepting the passing-on defence, thus aligning itself with the position of the EU Damages Directive and following in the footsteps of the French, German and Austrian Supreme Courts, which earlier recognised the possibility for cartel members to rely on the passing-on defence.

The Hague District Court, 21 September 2016, CDC v. Shell, ESSO and Total

On 01 October 2008, the European Commission fined producers of paraffin wax for price fixing and market sharing. Subsequently CDC launched, on behalf of buyers of paraffin wax, a damages action before the Dutch courts claiming compensation for the overcharge caused by the defendants’ cartel agreements.

Having declared the assignment of claims by the purchasers of paraffin-wax to CDC valid, and having established the applicable laws, the Hague District Court ruled on the effects of settlement agreements and the disclosure of evidence in private antitrust damages actions.

Firstly, the Court ruled on the effects of the settlement reached by CDC with the former co-defendant Sasol. Following the settlement CDC reduced its claim towards the remaining defendants. The reduction of CDC’s claim does not relate to the amount paid by Sasol under the settlement agreement, but to the amount of Sasol’s share in the overall damage for which all cartel members mentioned in the decision are liable. However, the Court’s determination of Sasol’s share does not pre-determine the internal allocation of damages between the cartel members, which will be decided at a later stage. The defendants remain jointly and severally liable towards CDC, which is entitled to claim full or partial compensation from each of them. Therefore, the Court considered that at this stage of the proceedings, there was no reason to involve the other members of the cartel that are not parties to the current proceedings.

Secondly, the Court ruled on the disclosure of evidence by CDC in connection with the defendants’ passing-on defence. Although the burden of proof of the passing-on defence rests on the defendants, the Court acknowledged that the defendants could request in this specific case the disclosure of documents by CDC because they had argued convincingly that the overcharge might have been passed on to their customers. The Court also considered that CDC should have safeguarded the requested documents, which from the outset could reasonably have been expected to become relevant. Pursuant to the principle of equality of arms, CDC should endeavour to make the documents available to the defendants and should provide a reasonable explanation for documents which are no longer available (for example, stating retention periods). However, CDC does not need to provide the documents until the defendants have made a significant advance (€200,000) on the related costs. A request for disclosure of the settlement agreement between CDC and Sasol was rejected, because it was deemed to lack relevance to the proceedings.