On 21 September 2016, the District Court of The Hague ("Court") rendered a judgment in the Dutch paraffin wax case.
The Court ruled on the effects of a claim reduction after an amicable settlement with one of the defendants and on disclosure of documents relating to the passing on defense.
In 2008, the European Commission imposed fines on eight paraffin wax producers for infringing the cartel prohibition of Article 101 TFEU. Claim vehicle CDC purported to have acquired damage claims from paraffin wax customers that were allegedly overcharged as a result of the infringement. In 2011, CDC sued four of those paraffin wax producers for the entire alleged damages caused by the infringement. The other paraffin wax producers were involved by the main defendants in separate contribution proceedings.
After CDC had quantified its alleged claim, it reached a settlement with Sasol, one of the main defendants. CDC then reduced its claim against the remaining three defendants by 'Sasol's share' in the alleged damage. The three remaining defendants argued that in order to quantify 'Sasol's share', the other addressees should be involved in the main proceedings. As the internal shares of the eight paraffin wax producers were mutually interdependent, it was not possible to determine Sasol's share without at the same time determining the other producers' shares. Although the Court rejected involving the contribution defendants in the main proceedings, it came up with a practical solution: it ruled that the case management of the main and contribution proceedings should be parallel, with joint hearings requiring the attendance of all paraffin wax producers and CDC.
Moreover, the Court ruled that if the settlement amount paid by Sasol to CDC turns out to exceed 'Sasol's share', it is to be deducted from any remaining claim. The Court indicated that it had no reason so far to assume this to be the case, but it explicitly noted that it may request CDC to disclose the settlement amount at a later stage.
The Court also dealt with disclosure of documents relating to the passing on defense (i.e. that the customers could not have suffered a loss because they "passed on" any alleged overcharge to their own customers). While CDC maintained that no passing on had occurred at all, the defendants requested certain categories of documents from CDC to show that a large portion of any overcharge was in fact passed on. CDC challenged this request by arguing, among other things, that its customers failed to preserve certain categories of documents, and that CDC could not be obliged to disclose non-existent documents. The Court ruled that while a passing on defense must be raised by the defendants, CDC as claimant was responsible for making sure that relevant documents were preserved and accessible for the defendants. The Court announced that it may "draw the inferences it deems advisable" from the failure to preserve those documents.
This article was published in the Competition Law Newsletter of November 2016. Other articles in this newsletter:
- District Court of Rotterdam annuls 6 fines in the Rotterdam taxi operators cartel case
- Dutch Ministry issues Guidelines on Corporate Sustainability Initiatives and Competition Law