Short Reads

Court applies Dutch law to all air freight cartel damages claims

Court applies Dutch law to all air freight cartel damages claims

Court applies Dutch law to all air freight cartel damages claims

06.06.2019 NL law

On May 1, the Amsterdam District Court ruled in two judgments (1) and (2) that Dutch law applies to all follow-on damages claims resulting from the international air freight cartel, mainly citing practical considerations for its decision.

This decision shows that courts are willing to take a pragmatic approach to the complicated question of determining the applicable law to international follow-on damages claims. The claimant-friendly judgment will be subject to direct appeal.

The decisions were rendered in proceedings initiated by indirect purchasers of air freight services against the airlines that are alleged to have participated in a price-fixing cartel between 1999 and 2006.

The Court had to decide which legal system (or systems) would govern the civil law damages claims of these indirect purchasers. Since the anticompetitive conduct occurred before the Rome II Regulation entered into force in January 2009, this question had to be adjudicated under the Dutch private international law rule which provides that claims arising out of an infringement of competition law are "governed by the law of the state where the competitive act affected the competitive relationships".

Therefore, the core question with regard to every individual claimant's claim was in which state the air freight cartel had allegedly produced anticompetitive effects. In this regard, the court noted that the alleged cartel involved an agreement which affected prices and competitive conditions in the global air freight market. According to the court, this worldwide impact on competitive relationships made the rule, which attempts to precisely identify the affected market, difficult and impractical to apply.

Therefore, the Court decided to adopt a more practical approach. Remarkably, it ruled that since the cartel had a worldwide impact, including in the Netherlands, Dutch law could be, and in fact had to be, applied to all individual claims. The court justified this approach with reference to the principles of due process ("goede procesorde") and the European law principle of effectiveness.

The Court's claimant-friendly approach favours pragmatic considerations over the applicable rules.

The potential impact of this judgment is limited to situations in which the Rome II Regulation does not apply. For claims resulting from anticompetitive conduct that took place after 11 January 2009, the Rome II Regulation already allows claimants to apply the law of the country in which they bring their claims, provided that this country's market was "directly and substantially" affected by the relevant anticompetitive conduct. The approach adopted by the court in Amsterdam somewhat reflects this possibility.

The Court was aware of its pioneering approach, and granted parties the right to directly appeal its decision. The Court of Appeal will have to decide whether the pragmatic approach adopted by the Court can be upheld on appeal.

 

This article was published in the Competition Law Newsletter of June 2019. Other articles in this newsletter:

Team

Related news

07.02.2020 BE law
Het finale Belgische ‘nationaal energie- en klimaatplan’ en de Belgische langetermijnstrategie: het geduld van de Commissie op de proef gesteld?

Articles - Op 31 december 2019 diende België, nog net op tijd, zijn definitieve nationaal energie- en klimaatplan (NEKP) in bij de Commissie. Het staat nu al vast dat het Belgische NEKP niet op applaus zal worden onthaald door de Commissie. Verder laat ook de Belgische langetermijnstrategie op zich wachten. Wat zijn de gevolgen?

Read more

06.02.2020 NL law
CDC/Kemira: Amsterdam Court of Appeal applies European principle of effectiveness to limitation periods

Short Reads - In a private enforcement case brought by CDC against Kemira, the Amsterdam Court of Appeal applies the European principle of effectiveness and rules that claims are not time-barred under Spanish, Finnish and Swedish law. With reference to the Cogeco judgment of the ECJ, the Court considers that claimants must be able to await the outcome of any administrative appeal against an infringement decision, even in relation to respondents who themselves have not filed appeals against the infringement decision.

Read more

06.02.2020 NL law
Pay-for-delay: brightened lines between object and effect restrictions

Short Reads - In its first pay-for-delay case, the ECJ has clarified the criteria determining whether settlement agreements between a patent holder of a pharmaceutical product and a generic manufacturer may have as their object or effect to restrict EU competition law. The judgment confirms the General Court’s earlier rulings in Lundbeck and Servier (see our October 2016 and December 2018 newsletters) in which it was held that pay-for-delay agreements (in these cases) constituted a restriction ‘by object’.

Read more

06.02.2020 NL law
Consumers and Sustainability: 2020 competition enforcement buzzwords

Short Reads - The ACM will include the effects of mergers on labour conditions in its review. It will also investigate excessive pricing of prescription drugs. As well as these topics, the ACM has designated the digital economy and energy transition as its 2020 focus areas. Companies can therefore expect increased enforcement to protect online consumers, and active probing of algorithms.

Read more

06.02.2020 NL law
The ACM may cast the net wide in cartel investigations

Short Reads - Companies beware: the ACM may not need to specify the scope of its investigation into suspected cartel infringements in as much detail as expected. On 14 January 2020, the Dutch Trade and Industry Appeals Tribunal upheld the ACM’s appeal against judgments of the Rotterdam District Court, which had quashed cartel fines imposed on cold storage operators. The operators had argued that the ACM was time-barred from pursuing a case against them, because the ACM had not suspended the prescription period by beginning investigative actions specifically related to the alleged infringements.

Read more

06.02.2020 NL law
Den Bosch Court of Appeal revives damages claims in Dutch prestressing steel litigation

Short Reads - On 28 January 2020, the Court of Appeal of Den Bosch issued a ruling in the Dutch prestressing steel litigation. In its ruling, the Court of Appeal overturned a 2016 judgment of the District Court of Limburg, in which it was held that civil damages claims brought by Deutsche Bahn were time-barred under German law (see our January 2017 newsletter).

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