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:

Related news

20.09.2022 EU law
Launch of Metaverse blog series

Articles - Stibbe launches a new blog series focusing on the legal challenges of the Metaverse. In our upcoming blog posts, we will discuss the legal challenges of NFTs, crypto-assets, Metaverse platforms, crypto exchanges, DAO, and many more.

Read more

28.07.2022 NL law
Zuiver commercieel belang ook gerechtvaardigd belang: Raad van State laat zich er niet over uit

Short Reads - Op 27 juli 2022 heeft de Raad van State bevestigd dat de Autoriteit Persoonsgegevens onterecht een boete van € 575.000 aan VoetbalTV heeft opgelegd. De hoop bestond dat de Afdeling antwoord zou geven op de vraag of de AP terecht of onterecht meent dat een zuiver commercieel belang géén gerechtvaardigd belang kan zijn in de zin van de Algemene Verordening Gegevensbescherming. Het antwoord op deze vraag blijft echter uit.  

Read more

03.08.2022 EU law
Gotta catch ‘em all? Upward referral of ‘killer acquisitions’ upheld

Short Reads - Companies involved in intended or completed M&A transactions falling below EU and national merger notification thresholds should beware that their deals may still catch the European Commission’s eye. The General Court has upheld the Commission’s decision to accept a national referral request regarding Illumina’s acquisition of Grail: a transaction not triggering any of the notification thresholds within the EEA.

Read more

28.07.2022 NL law
Purely commercial interest also a legitimate interest? Council of State leaves the question unanswered.

Short Reads - On 27 July 2022, the Council of State confirmed that the Dutch Data Protection Authority wrongly imposed a €575,000 fine on VoetbalTV. But the Council did not answer the question whether the AP rightly or wrongly believes that a purely commercial interest cannot be a legitimate interest within the meaning of the General Data Protection Regulation.

Read more

06.07.2022 NL law
Highest Dutch court: the postman may still ring twice?

Short Reads - The Dutch Minister of Economic Affairs and Climate Policy was wrong to unblock the ACM’s prohibited merger between postal operators PostNL and Sandd on grounds of public interest. According to the Trade and Industry Appeals Tribunal (CBb), the Minister cannot substitute the ACM’s assessment for its own when considering public interest reasons. Since the Minister did do so in this particular case, the CBb annulled the Minister’s merger clearance.

Read more