Short Reads

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

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

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

02.01.2017 NL law

On 16 November 2016, the District Court of Limburg rendered a final judgment in the Dutch prestressing steel case.

The 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, 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 newsletter article]. 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.

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

1. General Court rules on the concept of a single and continuous infringement in the smart card chips cartel case 
2. Envelope maker's cartel fine annulled in first successful European settlement appeal
3. ACM established guiding principles in relation to sustainability arrangements
4. Belgian Competition Authority confirms that the acquisition by a dominant player of a small competitor is not automatically an abuse of a dominant position

Team

Related news

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

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

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