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

07.10.2021 NL law
Commission’s record fine for gun jumping upheld

Short Reads - Pre-closing covenants protecting the target’s value or commercial integrity pending merger clearance from the European Commission must be drafted carefully. The General Court confirmed the Commission’s record-breaking fines on Altice for violating the EU Merger Regulation’s notification and standstill obligations. According to the General Court, the mere possibility of exercising decisive influence over the target can result in a gun jumping breach.

Read more

21.10.2021 EU law
Law and Artificial Intelligence (part three): towards a European perspective in intellectual property? The European Parliament goes one step further…

Articles - For the European Union, it is time to have uniformed rules on artificial intelligence (AI). On 20 October 2020, the European Parliamentary Assembly adopted, on the basis of three reports, three resolutions on AI from three different perspectives. These resolutions have recently (on 6 October 2021) been published in the Official Journal.

Read more

07.10.2021 NL law
Commission reveals first piece of antitrust sustainability puzzle

Short Reads - The European Commission has published a Policy Brief setting out its preliminary views on how to fit the European Green Deal’s sustainability goals into the EU competition rules. Companies keen to be green may be left in limbo by a looming clash with more far-reaching proposals from national competition authorities. More pieces of the antitrust sustainability puzzle will fall into place as soon as the ongoing review of the guidelines on horizontal cooperation is finalised.

Read more

21.10.2021 EU law
Law and Artificial Intelligence (part two): towards a European framework in line with the ethical values of the EU? The European Parliament goes one step further…

Articles - For the European Union, it is time to have uniformed rules on artificial intelligence (AI). On 20 October 2020, the European Parliamentary Assembly adopted, on the basis of three reports, three resolutions on AI from three different perspectives. These resolutions have recently (on 6 October 2021) been published in the Official Journal.

Read more

07.10.2021 NL law
Court of Appeal provides guidance for further course of proceedings in prestressing steel litigation

Short Reads - On 27 July 2021, the Court of Appeal of Den Bosch issued an interim judgment in the Dutch prestressing steel litigation, ruling on three issues: (i) the obligation of claimant to furnish facts; (ii) the assignment of claims; and (iii) the liability of the parent companies. In short, the Court of Appeal allowed the claimant Deutsche Bahn another opportunity to supplement the facts needed to substantiate its claims in the next phase of the proceedings.

Read more