Court of Appeal rules on limitation period for follow-on claims under Brazilian law in antitrust damages case concerning the cathode-ray tube markets

Introduction

On 17 June 2025, the Court of Appeal of 's-Hertogenbosch rendered a judgment (ECLI:NL:GHSHE:2025:1637) in antitrust follow-on damages litigation that followed a 2012 decision by the European Commission, imposing fines on seven manufacturers of cathode-ray tubes (CRT), including Samsung, for competition law infringements on the markets for CRTs for television screens (‘Colour Picture Tubes’; CPT), and CRTs for computer screens (‘Colour Display Tubes’; CDT). 

In addition to the European Commission, the CRT infringements were investigated by the Brazilian competition authority Conselho Administrativo de Defesa Econômica (CADE), which published its final infringement decision on 22 August 2018. Itautec, an alleged purchaser of CRTs in Brazil, initiated proceedings in the Netherlands in 2015, seeking damages from Samsung and other manufacturers of CRTs in connection with their participation in the infringements on the CRT markets.

In its decision dated 17 June 2025, the Court of Appeal largely upheld the District Court's earlier decisions that Samsung is jointly and severally liable for any damages caused by the CRT infringements under Brazilian law. 

Limitation period and classification of the claim

The issue in the appeal proceedings revolved around the question whether Itautec's claims are time-barred under Brazilian law and, in that context, when the limitation period began to run. According to Brazilian law, the limitation period for claims for damages is three years. The parties differ in their opinions as to whether knowledge is required for the limitation period to commence and, if so, what 'degree' of knowledge. Another factor in this debate is the distinction under Brazilian law between 'standalone' and 'follow-on' claims in antitrust damage cases, as this classification can alter when the limitation period begins to run and what knowledge requirements apply. Consequently, the parties disagree on whether Itautec's claim is time-barred.

Samsung argued that Itautec's claim is time-barred, stating that the limitation period started either when the infringement ended, regardless of knowledge (the actio nata principle) or, alternatively, when Itautec had objective knowledge of the infringement. 

Itautec countered by arguing that its claim is not time-barred. For claims based on unlawful acts, Itautec asserts that the limitation period begins at the time when the injured party becomes aware of the damage, the unlawful act, and the person liable for it ('unequivocal knowledge'). In addition, Itautec argued that the distinction between standalone and follow-on claims relates to the legal basis of the claim, and not to the moment at which proceedings were initiated. Therefore, a claim can be classified as follow-on even if brought before a final infringement decision has been issued.

The Court of Appeal noted that Brazil’s Superior Tribunal de Justiça (STJ) has issued important rulings on the commencement of the limitation period in antitrust damage cases. According to the Court of Appeal, the STJ defines standalone claims as claims in which “the victim itself presents evidence of the alleged act, as well as of the damage suffered”, and follow-on claims as claims in which “the victim bases its claim on evidence and decisions produced by the authority responsible for verifying the existence of the cartel”. The Court of Appeal states that the STJ distinguishes between standalone claims and follow-on claims with regard to the moment at which the limitation period begins:

• the limitation period for standalone claims starts to run from the moment when the injured party becomes aware of the damage, the unlawful act and the person liable for it (i.e., unequivocal knowledge); and
• for follow-on claims, “the statutory period only begins with the final decision rendered by the authority responsible for investigating competition wrongdoings”.

Applying those principles, the Court of Appeal classified Itautec's claim as a follow-on claim because (i) it is based on CADE's investigation and evidence, (ii) Itautec brought its claims following CADE’s investigation, and (iii) all elements of the claim (i.e., the wrongful act, the damage and the liable company) are derived from CADE’s investigation. The Court of Appeal found Samsung's argument that Itautec’s claim should be considered a standalone claim "artificial" and noted that Samsung's reasoning would create the illogical consequence that a claimant would have to wait to bring its claim in order to avoid it becoming time barred. That explanation cannot be reconciled with the fact that the purpose of the period of limitation is to ensure legal certainty. As the limitation period only begins to run with the final decision by the competition authority in the case of follow-on claims under Brazilian law, the limitation period in this case started to run when CADE published its decision on 22 August 2018. Now that Itautec initiated proceedings against Samsung already in 2015, Itautec’s claims have not become time barred.

Having classified Itautec's claim as a follow-on claim, the Court of Appeal ruled that it was no longer necessary to determine when Itautec could have had unequivocal knowledge of the infringement and the alleged damage (since unequivocal knowledge is only a requirement for standalone claims). Nevertheless, the Court of Appeal considers for completeness’ sake that Itautec could have had unequivocal knowledge – as a result of which the limitation period could have started to run – when the Consent Decrees between CADE, Philips and LG were published on 11 February 2015. At that time, Itautec became involved in CADE's investigation because CADE asked questions to Itautec, and, moreover, the Consent Decrees provided sufficient insight into the unlawful act, damage, and liable person. The Court of Appeal concludes that Itautec interrupted the limitation period in a timely manner, even if unequivocal knowledge had been a requirement.

Damages and causal link

Samsung argued that Itautec had not sufficiently substantiated any damages or a causal link, and that any overcharge would have been passed on to Itautec's customers. Itautec argued that it had provided substantiated assertions regarding the impossibility of passing on the overcharge and that, even if the overcharge could have been passed on, there would have been a volume effect (lower sales), so damage would still have been suffered.

The Court of Appeal noted that Itautec requested referral to separate quantum proceedings for the determination of its damages, and that, for such a referral, it is sufficient if the possibility that Itautec has suffered damages as a result of the infringements is (sufficiently) plausible. Given said threshold, the proceedings can be referred to subsequent quantum proceedings if Itautec has purchased products from any of the infringers during the infringement period. In short, the Court of Appeal found it sufficiently plausible that Itautec suffered damages from both the CPT and the CDT infringements. Regarding Samsung's pass-on defence, the Court of Appeal noted that even if Itautec could pass on the overcharge in full, it could still suffer damage in the form of volume losses due to necessary price increases. The Court of Appeal further ruled that a detailed damage assessment should be conducted in separate quantum proceedings.

Joint and several liability

The Court of Appeal clarified the scope of the joint and several liability, ruling that Samsung cannot be held liable for sales made by other infringers during periods when those other infringers had not yet joined or no longer participated in the infringements (even though Samsung itself participated throughout the entire infringement period). 

Starting date legal interest and inflation adjustment

The Court of Appeal made a correction in the interest and inflation calculation, by ruling that the right starting date for calculating the legal interest and inflation adjustment is the date on which Itautec actually paid the overcharge, and not – as the District Court ruled – the date on which the CPTs and CDTs were purchased. After all, the potential damage suffered by Itautec is only actually incurred at the moment that Itautec paid an overcharge.
 

Conclusion

The Court of Appeal largely upheld the District Court’s judgment, confirming that Samsung is jointly and severally liable for damages caused by the CPT and CDT infringements. The case will now proceed in separate quantum proceedings, in which the actual amount of damages will be established.