Jeroen Kortmann speaks at the C5 Conference "Private Enforcement of Competition Law Damage Claims" in Amsterdam

Short Reads - Under Dutch law, the general principle is that contracts only have legal effects for the contracting parties themselves. In principle, contracts have no legal effects for third parties. If contracting parties agree on exoneration clauses in commercial contracts, the exoneration clauses will thus only have legal effects between those parties.

Short Reads - In hybrid cartel proceedings (in which one party opts out of settlement), settlement decisions should not pre-judge the outcome of the Commission's investigation into non-settling parties. When the Commission publishes the settlement decision before the decision imposing a fine on the non-settling party, it must be careful in its drafting, the European Court of Justice confirmed. Furthermore, differences in the fining methodology applied to (similarly placed) settling and non-settling parties will have to be objectively justified and sufficiently reasoned.

Short Reads - Only dominant companies with a “genuinely tight grip” on the market can be forced to grant rivals access to their infrastructure. According to the ECJ’s rulings in Slovak Telekom and Deutsche Telekom, it is only in this scenario that the question of indispensability of the access for rivals comes into play. In the assessment of practices other than access refusal, indispensability may be indicative of a potential abuse of a dominant position, but is not a required condition.

Short Reads - On 9 December 2020, the Amsterdam District Court (the “Court”) declared a foundation inadmissible in a collective action regarding alleged manipulation of LIBOR, EURIBOR and other interest rate benchmarks. The foundation sought declaratory judgments that Rabobank, UBS, Lloyds Bank and ICAP (the “defendants”) had engaged in wrongful conduct and unjust enrichment vis-à-vis the class members.