Short Reads

Changes in antitrust damages claims legislation in the Netherlands and the United Kingdom

Changes in antitrust damages claims legislation in the Netherlands and the United Kingdom

Changes in antitrust damages claims legislation in the Netherlands and the United Kingdom

03.11.2015 NL law

In the Netherlands, changes concerning the implementation of the antitrust damages directive have been proposed. In the UK, other changes concerning antitrust damages claims have recently been implemented.

Changes in the Netherlands

On 8 October 2015, the Dutch ministers of Justice and Economic affairs published a proposal for an act implementing the EU Antitrust Damages Directive (the "Proposal"). The Proposal  would see the Damages Directive implemented in new separate sections of the Dutch Civil Code ("DCC") and the Dutch Code of Civil Procedure ("DCCP") that will apply specifically to EU competition law infringements.

The Proposal largely follows the provisions of the Directive. These provisions concern inter alia, the tortious nature of EU competition law infringements and the presumption that they cause damage, joint and several liability for joint actions, the validity of a passing-on defence and an evidentiary presumption that overcharges are passed on to indirect purchasers [see our April 2014 newsletter]. 

In line with the Directive, the proposal states that immunity applicants will only be jointly and severally liable towards their own direct and indirect customers and suppliers, unless claimants cannot obtain redress from any of the other cartel participants. 

The Proposal adopts the provisions on the protection of leniency and settlement submissions of the Damages Directive. Disclosure cannot be ordered for leniency documents or settlement submissions, and such documents cannot be used as evidence. Certain other documents, such as replies to requests for information, can only be disclosed after the competition authority has closed its proceedings. With regard to the disclosure of evidence, the explanatory memorandum describes that the current system already provides for broader disclosure than required on the basis of the Directive.

In line with the current limitation periods for torts, the Proposal suggests a subjective limitation period of five years and an objective limitation period of twenty years. Following the Directive, the subjective limitation period only starts to run when the infringement has ended and the claimant is aware of the behaviour, infringer and damage. The subjective limitation period is interrupted when an investigatory act is performed or proceedings are initiated by a competition authority. Also in case of a consensual dispute resolution process the limitation period is interrupted. In that case a new limitation period of a maximum of three years starts to run.

The Proposal does not contain provisions on the prevention of overcompensation of claimants and multiple liability (Articles 12(1) and 15 of the Damages Directive). According to the explanatory memorandum, the legislator considers that this is already sufficiently safeguarded under Dutch law.

Other changes in the United Kingdom

In the United Kingdom, changes to the rules on antitrust damages claims have recently been implemented. On 1 October 2015, the Consumer Rights Act ("Act") and the Competition Appeal Tribunal ("CAT") Rules came into force. The most remarkable change is the introduction of an opt-out collective action regime for UK residents. This choice for an opt-out system in the UK deviates from the European Commission's preference for an opt-in system, as described in its Recommendation on collective redress. The CAT can from now on also hear stand-alone damages claims and grant injunctions. Also, the limitation period for claims before the CAT has been extended to six years from the date on which the infringing conduct comes to an end.

This article was published in the Competition Law Newsletter of November 2015. Other articles in this newsletter:

Back to top

Team

Related news

01.08.2019 NL law
General court dismisses all five appeals in the optical disk drives cartel

Short Reads - The General Court recently upheld a Commission decision finding that suppliers of optical disk drives colluded in bids for sales to Dell and HP by engaging in a network of parallel bilateral contacts over a multi-year period. The General Court rejected applicants' arguments regarding the Commission's fining methodology, including that the Commission ought to have provided reasons for not departing from the general methodology set out in its 2006 Guidelines.

Read more

08.08.2019 BE law
Regulating online platforms: piece of the puzzle

Articles - The new Regulation no. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, applicable as of 12 July 2020, is another piece of the puzzle regulating online platforms, this time focussing on the supply side of the platforms.

Read more

01.08.2019 NL law
Brand owners beware: Commission tough on cross-border sales restrictions

Short Reads - The European Commission recently imposed a EUR 6.2 million fine on Hello Kitty owner Sanrio for preventing its licensees from selling licensed merchandising products across the entire EEA. Sanrio is the second licensor (after Nike) to be fined for imposing territorial sales restrictions on its non-exclusive licensees for licensed merchandise. A third investigation into allegedly similar practices by Universal Studios is ongoing. The case confirms the Commission's determination to tackle these practices, regardless of type or form.

Read more

01.08.2019 NL law
Call of duty: Commission must state reasons when straying from its guidelines

Short Reads - The European Commission has lost a second battle concerning its EUR 15 million fine imposed upon interdealer broker ICAP, this time before the European Court of Justice. The Court upheld the previous judgment of the General Court on the basis of the Commission's failure to state reasons concerning its fining methodology of cartel facilitator ICAP. This may lead to more reasoned Commission decisions in the future - deterrence of cartel behaviour does not justify keeping the methodology for setting the fines as a 'black box'.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring