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

02.04.2020 NL law
ACM played high stakes and lost: no more fixed network access regulation

Short Reads - The ACM’s failure to meet the requisite standard of proof has led to the fixed networks of Dutch telecom providers KPN and VodafoneZiggo being free from access regulation. The Dutch Trade and Industry Appeals Tribunal ruled that the ACM had failed to demonstrate the existence of collective dominance, and that KPN and VodafoneZiggo would tacitly coordinate their behaviour absent regulation.

Read more

26.03.2020 BE law
​I am suffering significant financial losses as a result of the spread of the corona virus. Is there a possibility of State aid?

Short Reads - COVID-19 brings certain questions to centre stage regarding State aid. In this short read, Peter Wytinck, Sophie Van Besien and Michèle de Clerck discuss the possibility of State aid in case of significant financial losses as a result of the spread of the corona virus.

Read more

02.04.2020 NL law
Claims assigned to a litigation vehicle: who needs to prove what?

Short Reads - Two recent decisions from the Amsterdam Court of Appeal have confirmed that litigation vehicles cannot come empty-handed to the court, and should provide documentation regarding the assignments of claims they submit. The Dutch legal system allows companies and individuals to assign their claims to a “litigation vehicle” or “claims vehicle” that bundles those claims into a single action. In its decisions of 10 March 2020, the Court of Appeal ruled that it is up to litigation vehicles to prove that the assignments can be invoked against the debtor. 

Read more

10.03.2020 NL law
De AVG staat niet in de weg aan de verwerking van persoonsgegevens door een toezichthouder tijdens een bedrijfsbezoek

Short Reads - Bedrijven die met toezicht worden geconfronteerd, zijn gehouden op verzoek van een toezichthouder in beginsel alle informatie te verstrekken. Met de komst van de Algemene verordening gegevensbescherming (AVG) is in de praktijk de vraag opgekomen of een toezichthouder bevoegd is om persoonsgegevens die onderdeel uitmaken van de gevraagde informatie te verwerken.

Read more

02.04.2020 NL law
EU competition policy agenda: full to the brim

Short Reads - The European Commission’s competition policy agenda stretches to 2024 and contains plans for many new or revised rules and guidelines. Recent publications, such as the New Industrial Strategy for Europe, shed more light on the Commission’s initiatives and their possible impact on parties from both inside and outside the European Union (EU). These new initiatives include temporary state aid rules to address the effects of the Corona crisis, consultations on the Block Exemption Regulations, and new measures in respect of (primarily) third-country companies.

Read more

05.03.2020 NL law
CBb confirms: no cartel fine, still interest to appeal cartel decision

Short Reads - Companies can challenge a decision establishing that they committed a competition law violation, even if no fine was imposed on them. The CBb – the highest court for public enforcement of cartel cases – recently confirmed that the absence of a fine does not affect a company’s interest to appeal. Consequently, parent companies held liable for a subsidiary’s cartel infringement can still challenge a cartel decision, irrespective of whether fines were imposed on them separately.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring