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

11.12.2019 EU law
Court of Appeal applies competition notion of undertaking in civil damages claim

Short Reads - The Court of Appeal of Arnhem – Leeuwarden recently applied the competition law notion of an 'undertaking' in a civil damages suit between TenneT and an entity belonging to the Alstom group of companies. The Court of Appeal ruled that Cogelex formed a single undertaking with its 48% shareholder Alstom. Cogelex could therefore be held liable under civil law for the competition law infringement of its 48% parent company. The Court of Appeal based its decision on a broad application of the ECJ’s reasoning in its Skanska judgment of 14 March 201

Read more

09.12.2019 BE law
Stibbe renforce sa pratique de droit européen et de la concurrence par la venue de Sophie Van Besien en qualité d’associée

Inside Stibbe - Bruxelles, le 9 décembre 2019 –  Stibbe a le plaisir d’accueillir Sophie Van Besien, avocate spécialisée en droit européen, droit de la concurrence et des marchés réglementés, en qualité de nouvelle associée au sein de son cabinet bruxellois. Son expertise permettra d’enrichir les prestations actuelles du cabinet au Benelux et de contribuer au développement de son activité en droit européen et en droit de la concurrence ainsi que des marchés réglementés. Sophie Van Besien rejoint Stibbe ce 9 décembre 2019.

Read more

09.12.2019 BE law
Stibbe expands EU/competition practice with new partner Sophie Van Besien

Inside Stibbe - Brussels, 9 December 2019 – Stibbe welcomes EU law, competition, and regulated markets lawyer Sophie Van Besien as a new partner in its Brussels office. Her expertise will enhance Stibbe’s service offering in the Benelux and contribute to the further development of its EU/competition and regulated markets practice. Sophie joins Stibbe on 9 December 2019.

Read more

05.12.2019 NL law
Big tech firms entering banking: be careful what you wish for

Short Reads - Big tech firms, whether entering or already active on payments markets, are under scrutiny. PSD2 has opened up the payments markets to non-bank companies, but this comes with both risks and opportunities. EU regulators are examining anticompetitive risks, for example the possibility of leveraging a strong position in one market into another market. Competition, innovation, privacy and security for financial transactions will all be hot topics as scrutiny increases on providers of payment services.

Read more

09.12.2019 BE law
Stibbe versterkt EU/competition praktijk met nieuwe vennote Sophie Van Besien

Inside Stibbe - Brussel, 9 december 2019 – Stibbe verwelkomt Sophie Van Besien, gespecialiseerd in Europees recht, mededingingsrecht en gereguleerde markten, als nieuwe vennote in het Brusselse kantoor. Sophie’s expertise zal Stibbe’s dienstverlening in de Benelux versterken en bijdragen aan de verdere ontwikkeling van zijn EU/competition en regulated markets praktijk. Sophie vervoegt Stibbe op 9 december 2019.

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