Court of Appeal rules on admissibility of antitrust follow-on damages claim under the old Dutch collective action regime
The judgment of the Court of Appeal of 's-Hertogenbosch of 27 May 2025 (ECLI:NL:GHSHE:2025:1480) concerns a collective action brought by Consumentenbond and Stichting Aequitas ("Consumentenbond") against Koninklijke Philips N.V. under the old Dutch collective action regime of Article 3:305a (old) DCC. The proceedings followed a 2012 decision by the European Commission, imposing fines on seven manufacturers of cathode-ray tubes ("CRT"), amongst which Philips, for competition law infringements (the "Infringements").
The Court of Appeal of 's-Hertogenbosch partially reversed the District Court's 2022 and 2023 decisions (ECLI:NL:RBOBR:2022:4506 and ECLI:NL:RBOBR:2023:418), ruling that Consumentenbond is admissible in its claims to the extent that it is seeking declaratory decisions that Philips acted unlawfully by its participation in the Infringements towards four categories of purchasers: (i) purchasers of Philips-branded monitors and televisions; (ii) purchasers of other brands incorporating CRTs manufactured by Philips or another participant in the Infringements; (iii) purchasers of products with non-Infringements CRTs whose prices were inflated due to 'umbrella effects'; and (iv) purchasers who purchased monitors and televisions during a period after the Infringements had ended (the 'lingering period'). The Court of Appeal ruled that under the old Dutch collective action regime, these claims only require an assessment of whether Philips' participation in the Infringements was unlawful towards the specified purchaser groups, without the need to determine the extent of any obligation to pay damages to those purchasers. In the view of the Court of Appeal this collective action has added value. While the European Commission's decision established the Infringements, it did not determine unlawful conduct towards specific purchaser groups. The declaratory decisions sought by Consumentenbond prevent that unlawfulness must be established repeatedly in a large number of separate individual proceedings, with the risk of conflicting decisions.
The Court of Appeal declared Consumentenbond inadmissible in its further claims, through which it sought declaratory decisions regarding the existence of an "overcharge", as well as the overcharge percentage. Insofar as those claims serve to determine the possible overcharge faced by purchasers, they are claims aimed at determining the extent of the liability for damages towards individual purchasers, which is not possible under the old Dutch collective action regime.
The Court of Appeal ended its decision by referring the case back to the District Court of Oost-Brabant for further adjudication.
