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

01.08.2019 NL law
General court dismisses all five appeals in the optical disk drives cartel

Short Reads - The General Court recently upheld a Commission decision finding that suppliers of optical disk drives colluded in bids for sales to Dell and HP by engaging in a network of parallel bilateral contacts over a multi-year period. The General Court rejected applicants' arguments regarding the Commission's fining methodology, including that the Commission ought to have provided reasons for not departing from the general methodology set out in its 2006 Guidelines.

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

01.08.2019 NL law
Brand owners beware: Commission tough on cross-border sales restrictions

Short Reads - The European Commission recently imposed a EUR 6.2 million fine on Hello Kitty owner Sanrio for preventing its licensees from selling licensed merchandising products across the entire EEA. Sanrio is the second licensor (after Nike) to be fined for imposing territorial sales restrictions on its non-exclusive licensees for licensed merchandise. A third investigation into allegedly similar practices by Universal Studios is ongoing. The case confirms the Commission's determination to tackle these practices, regardless of type or form.

Read more

08.08.2019 BE law
Regulating online platforms: piece of the puzzle

Articles - The new Regulation no. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, applicable as of 12 July 2020, is another piece of the puzzle regulating online platforms, this time focussing on the supply side of the platforms.

Read more

01.08.2019 NL law
Call of duty: Commission must state reasons when straying from its guidelines

Short Reads - The European Commission has lost a second battle concerning its EUR 15 million fine imposed upon interdealer broker ICAP, this time before the European Court of Justice. The Court upheld the previous judgment of the General Court on the basis of the Commission's failure to state reasons concerning its fining methodology of cartel facilitator ICAP. This may lead to more reasoned Commission decisions in the future - deterrence of cartel behaviour does not justify keeping the methodology for setting the fines as a 'black box'.

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