On 7 June 2016, a legislative proposal to enact the EU Antitrust Damages Directive (the "Proposal") was submitted to the House of Representatives (Tweede Kamer). The Proposal serves to implement the Damages Directive in various sections of the Dutch Civil Code ("DCC") and the Dutch Code of Civil Procedure ("DCCP"). EU Member States must implement the Damages Directive by 26 December 2016.
The Proposal concerns various issues such as the tortious nature of EU competition law infringements and the presumption that they cause loss, joint and several liability for joint behaviour, the validity of the passing-on defence and an evidentiary presumption that overcharges are passed on to indirect purchasers [see our our November 2015 newsletter].
Several individuals and working groups, including the Vereniging voor Mededingingsrecht and the Werkgroep Private Enforcement and collective redress in European competition law, both chaired by Stibbe partner Jeroen Kortmann, gave feedback on the Proposal through a public consultation. After the public consultation and an advice from the Council of State (Raad van State), only few amendments have been made to the Proposal.
The provisions of the Proposal are only applicable to competition law infringements that affect trade between EU Member States. For example, the presumption of Article 6:193l DCC that an infringement of competition law causes harm, only applies to infringements within the meaning of Article 101 or 102 TFEU or provisions of national law that are applied in the same cases in parallel to EU competition law. The government will deal with purely national infringements in a separate legislative proposal. Also follow-on litigation in relation to cartels in the United States, for example, is excluded from the scope of application.
In order to encourage amicable settlements, Article 6:193o DCC will enable a once-and-for-all settlement. The article provides that the claim of the settling injured party on the remaining infringers is reduced by the settling infringer's share of the liability. To avoid the settling infringer continuing to be jointly and severally liable, the remaining claim can only be pursued against non-settling co-infringers. Furthermore, the non-settling co-infringers cannot recover a contribution from the infringer who settled.
The most notable amendment concerns the limitation periods. In the draft proposal, the limitation periods would be interrupted in case of an alternative dispute resolution process or an investigation of a competition authority. Article 6:193t DCC now states that, in the event of an alternative dispute resolution process, the short-stop limitation period of five years will be extended by the duration of this process. When a competition authority starts an investigation, the limitation period will be extended by the duration of the investigation plus one year. The extensions are effected by operation of law.
This article was published in the Competition Law Newsletter of July 2016. Other articles in this newsletter:
1. Court of Justice dismisses appeals in the Calcium Carbide Cartel
2. General Court confirms that the financial position of shareholders and the possibility to increase credit facilities are relevant when assessing an inability to pay request
3. General Court confirms illegality of non-compete clause in telecoms transaction
4. District Court of Rotterdam rejects the applicability of arbitration clauses in antitrust damages litigation
5. New maximum fines for competition law infringements in the Netherlands as of 1 July 2016
6. General Court rules that an implicit and unlimited guarantee does not necessarily constitute State aid