Short Reads

District Court in the Netherlands rules on limitation periods in CRT case

District Court in the Netherlands rules on limitation periods in CRT

District Court in the Netherlands rules on limitation periods in CRT case

01.08.2018 NL law

On 27 June 2018, the District Court of East-Brabant ruled on the limitation periods of a damages claim brought by Vestel in relation to the alleged cathode ray tubes (CRT) cartel. The District Court found that the damages claim is not time-barred under Turkish law.

In December 2012, the Commission fined eight CRT producers for participating in two separate infringements of Article 101 TFEU. The infringements related to colour picture tubes (CPTs) and colour display tubes (CDTs). In November 2014, the Turkish electronic-appliances company Vestel initiated damages proceedings in the Netherlands against several addressees of the Commission decision.

In deviation from the usual 'order of play' in Dutch civil proceedings, the District Court had decided to have the parties debate the proper application of limitation periods for damages claims under Turkish law, before getting to the merits of the case.

Under the governing Turkish law, a long-stop period of 10 years and a short-stop period of one year or two years apply: the relevant statutory short-stop period was extended from one year to two years as per 1 July 2012. According to the claimants, for the short-stop period to start running, actual knowledge of the damage and the identity of the liable person is required. That knowledge would only have been acquired after the Commission published a press release on 5 December 2012. The defendants argued that Vestel had or should have already had sufficient knowledge before November 2012, hence more than two years before the proceedings were initiated.

Referring to two expert opinions, the District Court sided with Vestel and held that under Turkish law the short-stop period only starts to run when the aggrieved person actually becomes aware of the damage and the identity of the liable person. According to the District Court, the defendants failed to demonstrate that Vestel had the relevant knowledge before 5 December 2012. The media statements to which the defendants referred did not provide sufficient information for Vestel to be able to bring a claim. The District Court concluded that the claims were not time-barred under the applicable short-stop limitation period of 2 years.

In determining the starting point of the long-stop period, the parties disagreed on what constitutes the 'tortious act'. Vestel argued that participating in the alleged cartel in itself was the tortious act and that therefore the limitation period started to run only after the alleged cartel was ended. The defendants argued that for purposes of statutory limitation under Turkish law, one needs to establish first when a right of action arises. The alleged cartel in itself does not constitute a "tortious act" vis-à-vis an individual customer like Vestel and, therefore, does not give rise to a right of action. Instead, a right of action arises if and when a (sales) transaction occurs, that is allegedly affected by the cartel. Therefore, in the view of the defendants it is the implementation of the cartel in relation to each separate sales transaction that constitutes a "tortious act". Consequently, the long-stop limitation period should be applied to every transaction separately, and starts running from every date of purchase.

However, the District Court again sided with Vestel on this issue, holding that the relevant (continuous) "tortious act" for purposes of applying the long-stop statutory limitation under Turkish law, is the participation in the alleged cartel. According to the District Court, the approach advocated by the defendants is inconsistent with the commonly accepted concept of joint and several liability of the cartelists and with the notion that cartelists may be liable to pay compensation for umbrella damages in follow-on cases. Consequently, the District Court concluded that the long-stop period did not start to run until the moment the alleged cartel had ended and that this limitation period therefore had not yet expired.

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. Court of Appeal in the Netherlands decides to appoint independent economic experts in TenneT v ABB
  7. Belgian Court of Cassation annuls decision prohibiting pharmacists from using Google Adwords

 

Team

Related news

11.09.2019 EU law
Legal trend: climate change litigation

Articles - Climate change cases can occur in many shapes and forms. One well-known example is the Urgenda case in which the The Hague Court condemned the Dutch government in 2015 for not taking adequate measures to combat the consequences of climate change. Three years later, the Court of Justice of The Hague  upheld this decision, and it is now pending before the Dutch Supreme Court. This case is expected to set a precedent for Belgium, i.a. Since both the Belgian climate case and the Urgenda case are in their final stages of proceedings, this blog provides you with an update on climate change litigation.

Read more

05.09.2019 NL law
No fine means no reason to appeal? Think again!

Short Reads - Whistleblowers who have had their fine reduced to zero may still have an interest in challenging an antitrust decision. The Dutch Authority for Consumers and Markets (ACM) held two de facto managers personally liable for a cartel infringement but, instead of imposing a EUR 170,000 fine, granted one of them immunity from fines in return for blowing the whistle. The Trade and Industry Appeals Tribunal found that, despite this fortuitous outcome, the whistleblower still had an interest in appealing the ACM's decision.

Read more

05.09.2019 NL law
ECJ answers preliminary questions on jurisdiction in cartel damage case 

Short Reads - On 29 July 2019, the ECJ handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in what is termed the trucks cartel. The court clarified that Article 7(2) Brussels I Regulation should be interpreted in such a way as to allow an indirect purchaser to sue an alleged infringer of Article 101 TFEU before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage. In practice, this often means that indirect purchasers will be able to sue for damages in their home jurisdictions.

Read more

05.09.2019 NL law
Wanted: fast solutions for fast-growing platforms

Short Reads - Dominant digital companies be warned: calls for additional tools to deal with powerful platforms in online markets are increasing. Even though the need for speed is a given in these fast-moving markets, the question of which tool is best-suited for the job remains. Different countries are focusing on different areas; the Dutch ACM wants to pre-emptively strike down potential anti-competitive conduct with ex ante measures, while the UK CMA aims for greater regulation of digital markets and a quick fix through interim orders.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring