Short Reads

Dutch court: insufficient substantiation? No follow-on cartel damages action

Dutch court: insufficient substantiation? No follow-on cartel damages

Dutch court: insufficient substantiation? No follow-on cartel damages action

06.06.2019 NL law

Dutch courts are forcing claimants (including claims vehicles) to be well-prepared before initiating follow-on actions. The Amsterdam District Court in the Dutch trucks cartel follow-on proceedings recently ruled that claimants – specifically CDC, STCC, Chapelton, K&D c.s. and STEF c.s. – had insufficiently substantiated their claims.

These claimants now have until 18 September 2019 to provide sufficient facts regarding transactions that – according to them – were affected by the cartel. Preparation should thus be key for cartel damages actions.

Referring to case law such as CDC v. Akzo Nobel et al. and Courage v. Crehan et al. the Court started by pointing out that civil liability for antitrust violations is established by national law, rather than European law. Furthermore, the Court reasoned that the bundling of claims does not take away their individual character. Therefore, these claims should be considered individually.

The Court held that claimants should have provided sufficient facts to determine whether or not a purchaser, lessee and/or user was affected by the cartel to allow the Court to determine whether or not the possibility of harm is plausible. More precisely, the Court stated that claimants should have substantiated per individual claimant:

  • that and which trucks were obtained in the relevant period;
  • when, how and from whom Claimants purchased, rented, leased and/or used these trucks;
  • (if applicable) how and when the rental period, lease period, ownership and/or use of these trucks ended.

The Court noted that – absent this information – the defendants could simply contest the allegations made by the claimants. That would make the proceedings ineffective, since the Court would then have no choice but to reject the claims. The Court therefore provided claimants with the opportunity to provide the necessary factual information in a written submission on 18 September 2019. The Court ruled that it is up to the claimants to determine which facts and documents are necessary to sufficiently substantiate their claims. However, the Court also noted that if it is later established that the claimants did not provide sufficient facts, their claims may be dismissed.

In respect of the assignments of claims, the Court decided that claimants must provide assignment documentation to substantiate that claims were in fact assigned to them.

The Court did not decide when CDC’s motion for disclosure of the European Commission’s statement of objections will be debated. The Court indicated that it will decide this issue later as part of the debate on the merits of the claims.

In its judgement, the Court also decided to formally join all pending Dutch trucks cartel follow-on proceedings (currently over ten) before the Amsterdam District Court.

The Court’s judgment bears a striking resemblance to the recent (and final) judgment of the Court of Appeal of Arnhem-Leeuwarden in the elevator cartel case [see our February 2019 Newsletter]. In fact, the Court made an explicit reference to the Court of Appeal’s judgment in that case. The Court of Appeal held that the claimant (East West Debt B.V.) had failed to provide concrete information showing which parties were affected by the cartel. The claimant had also failed to adequately demonstrate which party had purchased which specific products, which manufacturers had provided those products, and how much had been paid in those transactions. As a result, the Court of Appeal rejected all claims.

Together, these judgments confirm that Dutch courts, while generally being open to cross-border follow-on actions, require that claimants (including claims vehicles) are well-prepared when they decide to initiate a follow-on action. Claimants’ writs of summons must include sufficient information regarding the harm suffered by claimants as a result of a cartel.

 

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

Related news

12.05.2020 NL law
Kroniek van het mededingingsrecht

Articles - Wat de gevolgen van de coronacrisis zullen zijn voor de samenleving, de economie en – laat staan – het mededingingsbeleid laat zich op het moment van de totstandkoming van deze kroniek niet voorspellen. Wel stond al vast dat het mededingingsrecht zal worden herijkt op basis van de fundamentele uitdagingen die voortvloeien uit zich ontwikkelende ideeën over het belang van industriepolitiek, klimaatverandering en de positie van tech-ondernemingen en de platforms die zij exploiteren.

Read more

07.05.2020 NL law
Spreading fast: Dutch and Belgian COVID-19 State-aid approved

Short Reads - Many Member States are taking measures to support the economy during the COVID-19 crisis. The European Commission’s Temporary Framework enables the rapid approval of certain types of State aid. So far, three Dutch State aid schemes and six Belgian schemes were approved, providing the beneficiaries with legal certainty that the aid received is in line with EU State aid law and cannot be challenged at a later stage.

Read more

07.05.2020 NL law
ECJ confirms: no shortcut for ‘by object’ antitrust infringements

Short Reads - The European Court of Justice has found there is no shortcut for determining whether particular conduct can be held to have the object to restrict competition. A competition authority will always need to assess carefully whether the conduct reveals "a sufficient degree of harm to competition” before labelling it a ‘by object’ infringement. This is the case where there is sufficiently solid and reliable experience showing that this type of conduct is commonly regarded as being inherently anticompetitive.

Read more

28.04.2020 EU law
Origin of the primary ingredient - Implementing Regulation 2018/775

Short Reads - Since the beginning of this month, the origin of the primary ingredient of a food must be clearly indicated on the product when it differs from the origin given for the product as a whole. This is the result of the implementation of Article 26 (3) of the European Regulation 1169/2011 on the provision of food information to consumers.  

Read more

07.05.2020 NL law
COVID-19: fast-forwarding competition law

Short Reads - Competition authorities are temporarily ‘green-lighting’ certain collaboration initiatives to safeguard the supply of essential products in light of the COVID-19 outbreak. At the same time, authorities warn against using the current exceptional circumstances to engage in anti-competitive practices, such as price-fixing, excessive pricing, refusals to deal or opportunistic takeovers. 

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