Short Reads

Rotterdam District Court rules on follow-on damages claim in relation to Dutch bitumen cartel

Rotterdam District Court rules on follow-on damages claim in relation

Rotterdam District Court rules on follow-on damages claim in relation to Dutch bitumen cartel

01.11.2018 NL law

The Rotterdam District Court recently clarified that the date of news coverage of a European Commission dawn raid will not set off the limitation period for a cartel damages claim if it is not clear to the potential cartel victim that one of its suppliers was involved.

It also found that the Dutch rules on evidence should be interpreted in accordance with the Damages Directive when the damages claim falls outside the scope of the Directive. It is therefore important to bear in mind that submitting details on news coverage of a cartel investigation may not suffice when arguing on the limitation period and that the Directive may have far-reaching consequences.

In September 2006, the Commission imposed fines on a number of bitumen suppliers, including Shell, Kuwait Petroleum and various construction companies, for their alleged participation in a price-fixing cartel in the bitumen market. The alleged cartel covered all bitumen used for road construction in the Netherlands from at least 1994 to 2002. Construction company Van Gelder claimed damages from Shell and Kuwait Petroleum, who supplied bitumen to it.

On 26 September 2018, the District Court of Rotterdam (the Court) ruled on the damages claim brought by Van Gelder in relation to the alleged bitumen cartel. The Court first ruled on relativity. According to the Court, being party to an agreement that restricts competition by object is in principle unlawful vis-à-vis all other market participants. Considering that at least one of the operating entities of Van Gelder was active in the relevant market, the Court concluded that the requirement of relativity had been fulfilled vis-à-vis this entity. The Court will decide on relativity in relation to the other operating entities and the shareholder at a later stage.

The Court then turned to the defence of statutory limitation. Referring to several press releases and newspaper articles, Shell argued that the relevant limitation period (article 3:310 (1) Dutch Civil Code) started to run no later than 22 October 2004. In the absence of a valid act of interruption or suspension, Van Gelder was out of time when it sent a claim letter on 5 September 2011. However, the Court sided with Van Gelder and held that it could not be inferred from the newspaper articles that (i) Kuwait Petroleum had participated in the cartel and (ii) the cartel had negatively influenced prices of non-cartelists. The Court concluded that the limitation period did not start to run until the date of the Commission's fining decision and therefore the claims were not time-barred.

With regard to applying the rules on evidence of the Damages Directive (the Directive), the Court first stated that the cartel took place between 1994 and 2002, which was outside the scope of the Directive (and its implementation). However, adhering to the principles of equivalence and effectiveness, the Court decided to interpret the applicable rules under Dutch law consistent with the Directive. This would, according to the Court, not lead to a contra legem interpretation of Dutch law. Consequently, the Court held that Van Gelder was presumed to have suffered damage unless Shell proves otherwise.

In conclusion, the Court held both Shell and Kuwait Petroleum  liable. The parties will now have a further debate on the amount of damage to be paid.

 

 

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

  1. Franchise argument in laundry cartel does not wash with Dutch court
  2. A problem shared is a problem halved: fine reduction and fine liability are correlated
  3. ACM bound by its own rules during dawn raids
  4. European Court of Justice clarifies the application of choice of forum clauses in competition damages claims

Team

Related news

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

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

07.10.2021 NL law
ACM walks the walk: first-ever vertical price coordination fine

Short Reads - The Dutch Competition Authority (“ACM”) has claimed a first victim in its vertical restraints battle. Samsung Electronics was fined nearly EUR 40 million for having meddled in the online resale prices for televisions at seven retailers. Compared to the European Commission’s fines on four consumer electronics producers for resale price maintenance (“RPM”), the ACM’s summary decision seems to refer to a ‘light’ version of RPM: systematic price coordination without any threats, sanctions or incentives for the retailers to stick to the price.

Read more