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

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