Short Reads

District Court of Limburg ruled that damages claims in the Dutch prestressing steel case are time-barred

District Court of Limburg ruled that damages claims in the Dutch prestressing steel case are time-barred

District Court of Limburg ruled that damages claims in the Dutch prestressing steel case are time-barred

12.01.2017 NL law

On 16 November 2016, the District Court of Limburg ("District Court") rendered a final judgment in the Dutch prestressing steel case (ECLI:NL:RBLIM:2016:9897).

The District Court ruled that the damages claims are time-barred under German law and therefore dismissed all claims against the defendant prestressing steel producers who appeared in the proceedings and filed defences including, inter alia, a defence of statutory limitation. However, the claims were granted in their entirety against two defendants who failed to appear in the proceedings.

In 2010, the European Commission fined 17 producers of prestressing steel for having infringed European competition law by participating in a price-fixing and market-sharing cartel. On 31 December 2013, several entities of the Deutsche Bahn group of companies brought civil proceedings in the District Court of Limburg, the Netherlands. They claimed that the defendant producers are jointly and severally liable for all loss suffered due to the infringement. In a judgment of 25 February 2015 (ECLI:NL:RBLIM:2015:1791) the Court accepted jurisdiction to rule on damages claims against all alleged cartel participants, as a Dutch 'anchor' was amongst the defendants (see our April 2015 Competition Law Newsletter). After that judgment, the defendants filed several additional defences.

According to defendant DWK Drahtwerk Köln GmbH ("DWK"), the Court should have stayed the proceedings and subsequently declared the writ of summons void as it had not been correctly served upon DWK. Referring to European case law, the Court reiterated that the national procedural rules of the competent court must be applied, i.e. in this case: the Dutch rules of civil procedure. The Court ruled that as DWK voluntarily appeared in the proceedings and DWK's interests were not unreasonably prejudiced, the nullity of the writ of summons was 'healed' when DWK appeared before the Court.

The Court then turned to the defence of statutory limitation, which had been invoked by all defendants who appeared in the proceedings. Pursuant to Article 7 of the Act regarding Conflict of Laws on Torts (Wet conflictenrecht onrechtmatige daad), the rules of the law applicable – in this case: German law – determine the limitation periods for damages claims as well as the interruption and the suspension thereof. Under German law, a long-stop limitation period of 10 years and a short-stop period of 3 years apply. The defendants argued – and Deutsche Bahn did not dispute – that the long-stop period started to run no later than September 2002. Therefore, in the absence of a valid act of interruption or suspension, Deutsche Bahn was out of time when it issued the proceedings on 31 December 2013.

Referring to Article 33(5) of the German Competition Act (Gesetz gegen Wettbewerbbeschränkungen, hereinafter "GWB") that came into force in July 2005, Deutsche Bahn argued that the limitation period had been suspended by operation of law for the duration of the European Commission's investigation into the competition law infringement. However, the Court sided with the defendants and held that, in the absence of specific transitional provisions, Article 33(5) GWB could not be applied retroactively to damages claims in relation to loss suffered prior to July 2005. The Court acknowledged and discussed a 2014 judgment of the Higher Regional Court of Düsseldorf, in which a German appeal court had applied Article 33(5) GWB retroactively, but did not find that court's reasoning persuasive. At first blush, it may seem remarkable that a Dutch court of first instance would disagree with a German appeal court on the proper application of a provision in the German Civil Code. The retroactive application of Article 33(5) GWB by the Higher Regional Court of Düsseldorf is, however, subject to significant controversy. See for a recent decision in which another German appeal court ruled that Article 33(5) GWB cannot be applied retroactively the Higher Regional Court of Karlsruhe, 9 November 2016, 6 U 204/15 Kart (2), with further references to case law and literature on the issue.

In the alternative, Deutsche Bahn relied on the European Court of Justice judgment in the case of Manfredi (ECLI:EU:C:2006:461), arguing that a strict interpretation of the (old) German rules on statutory limitation would run afoul of the principle of effectiveness. Again, the Court disagreed. In its Manfredi decision, the highest European court had pointed out that a limitation period that begins to run before the claimant has knowledge of the infringement could make it practically impossible to seek compensation, "particularly if that national rule also imposes a short limitation period which is not capable of being suspended". However, as the defendants had argued and the Court accepted, the German long-stop limitation period of 10 years was neither short, nor incapable of being suspended. Therefore, the Court concluded that Deutsche Bahn's damages claims were time-barred.

Still, for Deutsche Bahn the case did not result in a full dismissal of its claims. As a matter of Dutch civil procedure, courts cannot apply rules of statutory limitation ex officio. The claims against the two defendants who did not appear in the proceedings and omitted to put forward a defence, were subjected only to a prima facie review of their merits. As these claims appeared to be neither unlawful nor unfounded, the claims were granted in their entirety. The Court ruled that these defendants infringed Article 101 TFEU and are jointly and severally liable for all the loss suffered by Deutsche Bahn as a result of the infringement.

Related news

08.07.2020 NL law
Dutch State breached duty of care in providing information to victims and surviving relatives of plane crash

Short Reads - Earlier this year, the District Court in The Hague ruled that the Dutch State is liable vis-à-vis the victims and surviving relatives of a 1992 plane crash in Faro, Portugal. The State was found liable because it is responsible for the information provided by the Dutch Aviation Safety Board (a government agency) to the victims and surviving relatives. This information, on the causes of the crash was deemed by the court to be incorrect and incomplete.

Read more

07.07.2020 NL law
UBO-register gaat van start op 27 september 2020

Short Reads - Vandaag (7 juli 2020) is bekend geworden dat het UBO-register live gaat op 27 september 2020. De Wet tot implementatie van het UBO-register (“Implementatiewet”) en het bijbehorende inwerkingtredingsbesluit zijn vandaag in het Staatsblad verschenen. De wet treedt (deels) al op 8 juli 2020 in werking. Het betreft de verplichting voor rechtspersonen om informatie over hun UBO’s te verzamelen en bij te houden en de verplichting voor stichtingen om uitkeringen van 25 procent of minder bij te houden.

Read more

07.07.2020 NL law
Actualiteiten bescherming Nederlandse ondernemingen

Short Reads - Het afgelopen half jaar zijn er verschillende ontwikkelingen geweest op het gebied van bescherming van Nederlandse ondernemingen. COVID-19 zorgde daarbij voor een stroomversnelling. De verslechterde economische situatie als gevolg van COVID-19 maakt dat ondernemingen sneller bloot kunnen komen te staan aan ongewenste overnames of investeringen. Het Kabinet biedt ondernemingen handvatten ter bescherming tegen ongewenste overnames en investeringen als de nationale veiligheid in het geding komt.

Read more

02.07.2020 NL law
Aansprakelijkheid van de Staat bij vliegtuigcrash in Faro

Articles - In haar uitspraak van 8 januari 2020 oordeelde Rechtbank Den Haag dat de Nederlandse Staat onrechtmatig heeft gehandeld jegens de slachtoffers en nabestaanden van de vliegramp in Faro (Portugal) in 1992, waarbij een Nederlands toestel was betrokken. De onrechtmatigheid is gelegen in onjuiste dan wel onvolledige informatieverstrekking over de oorzaken van deze vliegramp door de toenmalige Raad voor de Luchtvaart, inmiddels opgegaan in de Onderzoeksraad voor Veiligheid (‘Raad’). 

Read more

07.07.2020 NL law
UBO-register starts on 27 September 2020

Short Reads - It was announced on 7 July that the UBO register will go live on 27 September 2020. The Act on the implementation of the UBO register ("Implementation Act") and the corresponding decree of entry into force have each been published today in the Bulletin of Acts and Decrees. The Act will (partially) enter into force on 8 July 2020, and concerns the obligation for legal entities to collect and maintain information about their UBOs and the obligation for foundations to maintain benefits of 25 percent or less.

Read more

27.05.2020 NL law
Accountants advising in real estate transactions: be aware of penalties in mortgage deeds

Short Reads - The Court of Appeal of Arnhem-Leeuwarden ruled on 3 March 2020 that an accountant did not properly advise her client with respect to a sale of real estate (ECLI:NL:GHARL:2020:1875). In her research concerning the consequences of the sale, the accountant had failed to properly review the contracts between the seller and the financier of the real estate. The accountant had therefore acted unlawfully.

Read more