Short Reads

Court of Appeal in the Netherlands decides to appoint independent economic experts in TenneT v ABB

Court of Appeal in the Netherlands decides to appoint independent eco

Court of Appeal in the Netherlands decides to appoint independent economic experts in TenneT v ABB

01.08.2018 NL law

On 20 July 2018, the Court of Appeal of Gelderland published another interim judgment in the ongoing proceedings between TenneT, the grid operator in the Netherlands, and ABB in relation to the gas insulated switchgear (GIS) infringement. After the Dutch Supreme Court had confirmed in a judgment of 8 July 2016 [see our August 2016 Newsletter] that the passing-on defence is available under Dutch law, the Court of Appeal of Gelderland decided to appoint independent economic experts to provide input on the calculation of overcharge and the existence of pass-on.

The District Court had awarded an amount of EUR 23 million plus interest to TenneT. In its ruling, the District Court rejected ABB's attempt to invoke the passing-on defence, holding that it would not be reasonable to allow it considering the circumstances of the case [see our April 2017 Newsletter article which refers to the previous rulings]. On appeal, ABB argued that the District Court (i) incorrectly calculated the overcharge resulting from the GIS cartel and (ii) erred in law in ruling that it was not reasonable to allow the passing-on defence.

The Court of Appeal of Gelderland did not opine on the merits of these grounds of appeal in its judgment of 29 May 2018. It did, however, make clear that the Court of Appeal of Gelderland wishes to conduct a more in-depth investigation into the actual loss suffered by TenneT as a result of ABB's involvement in the GIS cartel by appointing economic experts to establish the resulting overcharge.

Regarding the passing-on defence, the Court of Appeal referred to the earlier Supreme Court judgment (noted above) establishing that a passing-on defence can be cognizable under Dutch law either as a factor affecting the loss suffered by a claimant (i.e. reducing any alleged loss associated with the payment of 'overcharges' to the extent that the overcharge was passed on), or under the doctrine of voordeelstoerekening, which holds that benefits enjoyed by a claimant as a result of alleged wrongdoing may under certain conditions be offset against the loss suffered by the claimant (cf. under German law: Vorteilsausgleichung).

The Supreme Court held that lower courts are free to decide which of the two approaches to adopt. The Court of Appeal opted for the first approach and decided that in order to fully assess the passing-on defence, it must first establish whether TenneT actually passed-on the overcharge to its customers.

As a final remark, it is perhaps worth noting that the Court of Appeal also confirmed that the District Court was right to reject ABB's request to submit the economic expert reports under a "confidentiality ring", considering that the interests in confidentiality of ABB did not outweigh the interests of third parties to obtain an unredacted judgment.

This article was published in the Competition Law Newsletter of August 2018. Other articles in this newsletter:

  1. European Court of Justice dismissed Orange Polska’s appeal in abuse of dominance case
  2. General Court underlines importance of Commission's duty to state reasons
  3. General Court dismisses appeals by investor against power cable cartel fine
  4. Google receives a second record fine of EUR 34 billion for imposing restrictions on Android device makers
  5. European Commission issues a new Best Practices Code for State aid control
  6. District Court in the Netherlands rules on limitation periods in CRT case
  7. Belgian Court of Cassation annuls decision prohibiting pharmacists from using Google Adwords

 

Team

Related news

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

05.03.2020 NL law
Swifter merger clearance and shorter merger filings in Belgium

Short Reads - Companies can expect swifter merger clearance and simpler filing rules in Belgium. The Belgian Competition Authority has published a communication with additional rules concerning the simplified procedure for certain types of concentrations. As a result, a new category of concentrations will be eligible for a simplified merger filing, leading to swifter approval and lower costs. It will also allow the BCA to focus its resources on more problematic and complex files.

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

05.03.2020 NL law
ECJ confirms: gun jumping is double trouble

Short Reads - Companies beware: the European Court of Justice has confirmed the Commission’s practice of imposing two separate fines for gun jumping; one for failing to notify a concentration prior to its implementation, and another for implementing the concentration before obtaining clearance. The ruling underlines, once again, the increased focus of competition authorities on procedural merger control breaches – good reason for companies to keep a watchful eye on their gun jumping obligations and to take note of the possibility of two separate gun jumping fines. 

Read more

05.03.2020 NL law
CBb confirms: no cartel fine, still interest to appeal cartel decision

Short Reads - Companies can challenge a decision establishing that they committed a competition law violation, even if no fine was imposed on them. The CBb – the highest court for public enforcement of cartel cases – recently confirmed that the absence of a fine does not affect a company’s interest to appeal. Consequently, parent companies held liable for a subsidiary’s cartel infringement can still challenge a cartel decision, irrespective of whether fines were imposed on them separately.

Read more

05.03.2020 NL law
Commission continues cross-border trade crusade

Short Reads - The European Commission is on a roll in its fight against territorial sales restrictions. Just one month after fining broadcast network company NBCUniversal for restricting cross-border sales, it has also imposed a fine on hotel group Meliá for discriminating between customers based on nationality or place of residence. Meanwhile, the Commission is urging national consumer protection authorities to tackle cross-border issues, after an EU-wide screening of nearly 500 e-shops showed that one fifth of the flagged websites did not respect the Geo-blocking Regulation. 

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