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

20.01.2022 BE law
Stibbe Brussels appoints five new Counsel

Inside Stibbe - Brussels, 20 January 2022 – The Brussels office of Stibbe has promoted Bastiaan Schelstraete (Environment & Planning), Stefanie François (Environment & Planning), David Verwaerde (Dispute Resolution), Lizelotte De Maeyer (Tax) and Pieter-Jan Leemen (Banking & Finance) to Counsel effective as of 1 January 2022. The new appointments demonstrate Stibbe’s ongoing commitment to promoting in-house talent to strengthen its practices.

Read more

11.01.2022 EU law
2022: the big reveal of 2021’s competition law promises

Short Reads - 2021 was riddled with sneak previews of a “review of competition policy tools with unprecedented scope and ambition”. These sneak previews, alongside 2021’s other competition law developments, seem to point in the direction of a more ‘social’ side to competition law in 2022, as well as looming Big Tech and Big Pharma battles, intensified (international) cooperation, more clarity on merger-related obligations for companies, and shiny new vertical and horizontal block exemption regulations. 2022 will reveal how and when the revised tools will materialise.

Read more

20.01.2022 BE law
Stibbe Brussel benoemt vijf nieuwe Counsels

Inside Stibbe - Brussel, 20 januari 2022 – Stibbe in Brussel heeft Bastiaan Schelstraete (Environment & Planning), Stefanie François (Environment & Planning), David Verwaerde (Dispute Resolution), Lizelotte De Maeyer (Tax) en Pieter-Jan Leemen (Banking & Finance) tot Counsel benoemd met ingang van 1 januari 2022. De nieuwe benoemingen kaderen in Stibbe’s beleid om intern talent te promoten en praktijkgroepen te versterken.

Read more

02.12.2021 NL law
Google Shopping: self-preferencing is a form of abuse of dominance

Short Reads - On 10 November 2021, the General Court (GC) almost entirely dismissed Google’s action against the European Commission’s Google Shopping decision. According to the European Commission (the Commission), Google illegally favoured its own comparison shopping service by displaying it more prominently in its search results than other comparison shopping services (see our July 2017 Newsletter). The Commission found that Google was abusing its dominant position and imposed a EUR 2.42 billion.

Read more

20.01.2022 BE law
Stibbe Bruxelles nomme cinq nouveaux Counsels

Inside Stibbe - Bruxelles, le 20 janvier 2022 – Le bureau bruxellois de Stibbe a nommé Bastiaan Schelstraete (Environment & Planning), Stefanie François (Environment & Planning), David Verwaerde (Dispute Resolution), Lizelotte De Maeyer (Tax) et Pieter-Jan Leemen (Banking & Finance) en tant que Counsels et ce, à compter du 1er janvier 2022. Ces nouvelles nominations témoignent de l'engagement continu de Stibbe à renforcer ses pratiques par la promotion de ses talents internes.

Read more

02.12.2021 NL law
Back to the future – Commission publishes roadmap for green and digital challenges

Short Reads - The Commission’s Communication “A competition policy fit for new challenges” (link) (the “Communication”) identifies key areas in which competition law and policy can support European efforts in dealing with the challenges of the green and digital transitions. The document covers all areas of competition law (antitrust, merger control, and State aid) and identifies various ways in which new and existing tools can contribute to addressing these challenges.

Read more