Short Reads

District Court of Gelderland denies passing-on defence in antitrust litigation related to the GIS-cartel

District Court of Gelderland denies passing-on defence in antitrust litigation related to the GIS-cartel

District Court of Gelderland denies passing-on defence in antitrust litigation related to the GIS-cartel

04.04.2017

On 29 March 2017, the District Court of Gelderland rendered a ruling in the "damage assessment procedure" ("schadestaatprocedure") between TenneT and ABB concerning an overcharge TenneT allegedly paid for a gas insulated switchgear installation ("GIS-installation"). The District Court awarded an amount of EUR 23 million plus interest to TenneT and denied ABB’s defence that TenneT did not suffer any loss because it passed on the costs of the GIS-installation to its customers (the "passing-on defence").

In previous decisions by the District Court for the Eastern Netherlands, the Court of Appeal of Arnhem-Leeuwarden and the Dutch Supreme Court, ABB was held liable vis-à-vis TenneT for ABB’s participation in the "Gas Insulated Switchgear cartel" between the years 1998-2004 [see the July 2016 Stibbe Litigation Blog]. Following the judgment of the Supreme Court on 8 July 2016, the case was referred to the District Court of Gelderland to rule on the quantum of damages.

In defence against TenneT's claim, ABB had submitted two economic expert reports arguing - with references to ABB’s profit margins - that TenneT had not paid any overcharge. ABB moreover requested the District Court to rule that these reports would fall under a "confidentiality ring", meaning i.a. that the judgment should not contain any references to ABB's margins. The District Court denied this request on the basis that third parties had a valid interest in obtaining an unredacted judgment, given ABB's reliance on the passing-on defence. As for the substance, the court ruled that the expert reports did not provide sufficient insight into ABB's input and production costs. Instead, the District Court ruled that TenneT had furnished enough evidence to substantiate its claim that it had paid an overcharge.

As for ABB's passing-on defence, the District Court accepted that TenneT, an electricity transmission system operator, was likely to have passed on the overcharge to its direct customers who in turn passed on this overcharge to the general public. According to the Court, however, the general public is unlikely to sue ABB for damages given the costs of legal proceedings. Moreover, any damages awarded to TenneT would – in the Court's view – likely end up benefitting the general public because the Dutch state is a 100% shareholder of TenneT. In a curious consideration obiter, the Court appears to imply that the fact that ABB received immunity from fines in the context of the European Commission's leniency programme, militates in favour of the Court's decision to reject the passing-on defence. In light of these circumstances, the Court ruled that it would not be reasonable to accept ABB's passing-on defence.

The District Court's reasoning is similar to its reasoning in January 2013, when it ruled that it would not be reasonable for ABB to escape liability using the passing-on defence. This ruling was however overturned on appeal because the compensatory nature of Dutch tort law is not concerned with the fact that ABB might escape some or all of its liability. ABB now has three months to decide if it wants to appeal the judgment of 29 March 2017.

This article was published in the Competition Law Newsletter of April 2017. Other articles in this newsletter:

  1. Court of Justice confirms the fine imposed on Samsung in the cathode ray tubes cartel
  2. Court of Justice rules on the Hearing Officer's competence to resolve confidentiality requests
  3. General Court annuls European Commission's merger blocking decision in UPS/TNT for procedural errors 
  4. European Commission proposes a new Directive to empower national competition authorities to be more effective enforcers of EU competition law rules
  5. European Commission launches anonymous whistleblower tool

Team

Related news

30.04.2019 EU law
Climate goals and energy targets: legal perspectives

Seminar - On Tuesday April 30th, Stibbe organizes a seminar on climate goals and energy targets. Climate change has incited different international and supranational institutions to issue climate goals and renewable energy targets. Both the UN and the EU have led this movement with various legal instruments.

Read more

15.03.2019 EU law
European Court of Justice issues landmark ruling on parental liability

Short Reads - On 14 March the European Court of Justice issued a landmark judgment in the Skanska case. In this ruling, the Court of Justice held that parent companies can be held liable for the damage caused by a competition infringement committed by their subsidiary if the parent company (that holds all the shares in the subsidiary) has dissolved the subsidiary but continued its economic activity.

Read more

01.03.2019 NL law
Does selling a phone on an online marketplace make you a "trader" under the Unfair Commercial Practices Directive and the Consumer Rights Directive?

Short Reads - Online marketplaces provide sales channels not only for professional traders but also for individuals selling second-hand goods. For buyers, online advertisements do not always make it clear whether the seller is a professional trader or an individual. This distinction is important because consumers buying from a professional trader can benefit from EU consumer laws, while these protections do not apply in consumer-to-consumer sales.

Read more

18.02.2019 BE law
Plan-MER voor Vlaams windturbinekader? Raad voor Vergunningsbetwistingen te rade bij Europa

Articles - Het wordt stilaan een traditie van de Belgische rechter om het Hof van Justitie te bevragen over de milieueffectenbeoordeling en -rapportage (MER). Na de Raad van State en het Grondwettelijk Hof is het de beurt aan de Raad voor Vergunningsbetwistingen. In een tussenarrest van 4 december 2018 heeft de Raad voor Vergunningsbetwistingen aan het Hof van Justitie een lijst met prejudiciële vragen gesteld over de plan-MER-plicht van het Vlaamse kader voor de uitbating van windturbines. Mogen we ons verwachten aan een juridische saga "d'Oultremont pt.II"?

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring