Short Reads

District Court of The Hague deals with claim reduction by claimant and rules that claimant is responsible for preserving documents

District Court of The Hague deals with claim reduction by claimant and rules that claimant is responsible for preserving documents

District Court of The Hague deals with claim reduction by claimant and rules that claimant is responsible for preserving documents

02.11.2016 NL law

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:

  1. District Court of Rotterdam annuls 6 fines in the Rotterdam taxi operators cartel case
  2. Dutch Ministry issues Guidelines on Corporate Sustainability Initiatives and Competition Law

Team

Related news

11.09.2019 EU law
Legal trend: climate change litigation

Articles - Climate change cases can occur in many shapes and forms. One well-known example is the Urgenda case in which the The Hague Court condemned the Dutch government in 2015 for not taking adequate measures to combat the consequences of climate change. Three years later, the Court of Justice of The Hague  upheld this decision, and it is now pending before the Dutch Supreme Court. This case is expected to set a precedent for Belgium, i.a. Since both the Belgian climate case and the Urgenda case are in their final stages of proceedings, this blog provides you with an update on climate change litigation.

Read more

05.09.2019 NL law
No fine means no reason to appeal? Think again!

Short Reads - Whistleblowers who have had their fine reduced to zero may still have an interest in challenging an antitrust decision. The Dutch Authority for Consumers and Markets (ACM) held two de facto managers personally liable for a cartel infringement but, instead of imposing a EUR 170,000 fine, granted one of them immunity from fines in return for blowing the whistle. The Trade and Industry Appeals Tribunal found that, despite this fortuitous outcome, the whistleblower still had an interest in appealing the ACM's decision.

Read more

05.09.2019 NL law
ECJ answers preliminary questions on jurisdiction in cartel damage case 

Short Reads - On 29 July 2019, the ECJ handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in what is termed the trucks cartel. The court clarified that Article 7(2) Brussels I Regulation should be interpreted in such a way as to allow an indirect purchaser to sue an alleged infringer of Article 101 TFEU before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage. In practice, this often means that indirect purchasers will be able to sue for damages in their home jurisdictions.

Read more

05.09.2019 NL law
Wanted: fast solutions for fast-growing platforms

Short Reads - Dominant digital companies be warned: calls for additional tools to deal with powerful platforms in online markets are increasing. Even though the need for speed is a given in these fast-moving markets, the question of which tool is best-suited for the job remains. Different countries are focusing on different areas; the Dutch ACM wants to pre-emptively strike down potential anti-competitive conduct with ex ante measures, while the UK CMA aims for greater regulation of digital markets and a quick fix through interim orders.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

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