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

06.02.2020 NL law
The ACM may cast the net wide in cartel investigations

Short Reads - Companies beware: the ACM may not need to specify the scope of its investigation into suspected cartel infringements in as much detail as expected. On 14 January 2020, the Dutch Trade and Industry Appeals Tribunal upheld the ACM’s appeal against judgments of the Rotterdam District Court, which had quashed cartel fines imposed on cold storage operators. The operators had argued that the ACM was time-barred from pursuing a case against them, because the ACM had not suspended the prescription period by beginning investigative actions specifically related to the alleged infringements.

Read more

07.02.2020 BE law
Het finale Belgische ‘nationaal energie- en klimaatplan’ en de Belgische langetermijnstrategie: het geduld van de Commissie op de proef gesteld?

Articles - Op 31 december 2019 diende België, nog net op tijd, zijn definitieve nationaal energie- en klimaatplan (NEKP) in bij de Commissie. Het staat nu al vast dat het Belgische NEKP niet op applaus zal worden onthaald door de Commissie. Verder laat ook de Belgische langetermijnstrategie op zich wachten. Wat zijn de gevolgen?

Read more

06.02.2020 NL law
CDC/Kemira: Amsterdam Court of Appeal applies European principle of effectiveness to limitation periods

Short Reads - In a private enforcement case brought by CDC against Kemira, the Amsterdam Court of Appeal applies the European principle of effectiveness and rules that claims are not time-barred under Spanish, Finnish and Swedish law. With reference to the Cogeco judgment of the ECJ, the Court considers that claimants must be able to await the outcome of any administrative appeal against an infringement decision, even in relation to respondents who themselves have not filed appeals against the infringement decision.

Read more

06.02.2020 NL law
Pay-for-delay: brightened lines between object and effect restrictions

Short Reads - In its first pay-for-delay case, the ECJ has clarified the criteria determining whether settlement agreements between a patent holder of a pharmaceutical product and a generic manufacturer may have as their object or effect to restrict EU competition law. The judgment confirms the General Court’s earlier rulings in Lundbeck and Servier (see our October 2016 and December 2018 newsletters) in which it was held that pay-for-delay agreements (in these cases) constituted a restriction ‘by object’.

Read more

06.02.2020 NL law
Consumers and Sustainability: 2020 competition enforcement buzzwords

Short Reads - The ACM will include the effects of mergers on labour conditions in its review. It will also investigate excessive pricing of prescription drugs. As well as these topics, the ACM has designated the digital economy and energy transition as its 2020 focus areas. Companies can therefore expect increased enforcement to protect online consumers, and active probing of algorithms.

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