On 29 November 2017, the District Court of East-Brabant ruled in four separate judgments (1, 2, 3 and 4) on preliminary defences raised by defendants in damages claims brought by various Brazilian claimants in relation to the alleged cartel in cathode ray tubes (CRT).
These claims relate to the decision from the Commission in 2012 fining eight CRT producers for participation in two separate infringements of Article 101 TFEU. One infringement related to colour picture tubes (CPTs) and the other to colour display tubes (CDTs). The Brazilian competition authority also initiated proceedings regarding both products and concluded settlements with some of the defendants. In August 2016, the Brazilian claimants initiated damages proceedings in the Netherlands against various addressees of the Commission decision and other entities, based on an alleged infringement of the Brazilian cartel prohibition.
The District Court judgments dealt with several preliminary defences raised by the defendants. These related to (i) an alleged failure to furnish facts and (ii) the international jurisdiction of the Dutch civil court (which was only contested by the non-EU entities involved in the proceedings).
First, the District Court clarified that the claimants had indicated during the oral hearing that their claims were based on a possible infringement of the Brazilian cartel prohibition. The District Court concluded that the claimants had furnished sufficient facts to bring the case based on an infringement of the Brazilian cartel prohibition. To the extent that the claimants also wished to rely on an infringement of Article 101 TFEU, the District Court confirmed that Article 101 TFEU only covers practices which might affect trade among EU Member States. As the claimants had not furnished sufficient facts to show that their claims related to transactions in the EEA area, the District Court ruled that the proceedings would continue solely on the grounds of an alleged infringement of the Brazilian cartel prohibition.
Secondly, the District Court ruled in separate judgments on the defences relating to jurisdiction. Most of these defences were rejected. However, the District Court did allow the defence brought by one of the defendants claiming that it was being sued for damages in relation to the CDT infringement, even though it was not fined by the Commission for participation in the CDT infringement and was not investigated by the Brazilian competition authority.
In the next stage of the proceedings, the District Court will hear the parties' arguments on the application of the Brazilian statute of limitation to the claims for damages.
This article was published in the Competition Law Newsletter of April 2018. Other articles in this newsletter:
1. District Court Amsterdam rules real estate platform Funda did not abuse its dominant position
2. First Dutch excessive pricing case in pharma may be expected soon