Contributed By Nysingh Advocaten-Notarissen N.V
On the basis of the Dutch Civil Code, natural and legal persons can claim damages caused by an infringement of the cartel prohibition.
The Act on the Resolution of Mass Claims in Collective Action (Wet Afwikkeling Massaschade in Collectieve Actie), published in the Official Gazette on 1 April 2019 and expected to enter into force on 1 July 2019, enables collective actions for monetary damages on an 'opt-out' basis, by representative bodies that fulfil certain requirements. These include, for instance, requirements regarding the governance and funding and the requirement that the representative body must be not-for-profit.
The Act on the Resolution of Mass Claims in Collective Action will apply to collective actions for damages initiated on or after the date of its entry into force that relate to 'events' that occurred on or after 15 November 2016.
As a result of the implementation of EU Directive 2014/104/EU on 10 February 2017, the Dutch Civil Code enables indirect purchasers to claim passing-on damages. The passing-on defence has been raised in court and has also been accepted by the Supreme Court. Regarding the amount of the claimed damages, in general, the claimant bears the burden of proof.
Article 152 (1) of the Code of Civil Procedure (CCP) (Wetboek van Burgerlijke Rechtsvordering) provides that evidence may be submitted in any form, unless the law prescribes otherwise. The assessment of this evidence is left to the discretion of the courts, Article 152 (2) of the CCP.
In Dutch civil procedural law, parties can demand access to documents from the other party (Article 843a of the CCP). In order for a claim under Article 843a of the CCP to be successful, the claimant must fulfil the following conditions.
Article 843a(2) of the CCP provides that the court may decide in which form access to documents shall be granted. The court may, for example, appoint a trusted third party that will have access. The court can also impose a non-disclosure obligation on the party that gets access.
In some recent cases regarding damage claims related to competition law infringements, Dutch courts discussed the scope of Article 843a of the CCP. In proceedings regarding the Air Cargo cartel, both claimants and defendants requested the disclosure of documents, such as the unredacted European Commission decision and documents relating to the functioning of the cartel including air waybills, invoices and assignment documentation. The Amsterdam District Court rejected all these requests in March 2015 as there was insufficient legitimate interest to order such disclosure at that stage of the proceedings.
In a case regarding the paraffin wax cartel, the District Court of the Hague affirmed that there is no general right of access to documents and that disclosure only relates to specific documents that can actually contribute to the damages action, provided that there are no overriding interests in the non-disclosure of documents or the fair administration of justice cannot be served without granting access.
In the case of TenneT/Alstom, Alstom claimed access to all documents regarding the cartel investigation of the European Commission as well as all the information which proves the damages suffered by TenneT. This claim was denied because it was not directed to obtaining specific documents.
If a previous cartel investigation concerning the same facts has been performed by the ACM, evidence derived from the previous investigation, such as an enforcement decision, is admissible as evidence in the subsequent investigation.
The amount of cases in which litigation is completed or in which a settlement is reached is too small to draw relevant statistical conclusions. It may however be pointed out that most cases, even those initiated several years ago, have not yet led to final judgments. It is therefore fair to say that cartel damages claims procedures will take several years, probably up to five years or more, before a final judgment is obtained.
In civil cases, successful claimants are entitled to compensation of procedural costs (including attorneys’ fees, court fees, costs related to obtaining and preserving evidence, witness fees). However, the amount is determined via a points-based system, which depends on the type of case. In general, and in cartel cases, the awarding of compensation of procedural costs will generally cover only a small part of those costs.
See 5.6 Compensation of Legal Representatives, above.
Judgments rendered by the Dutch district courts (courts of first instance) may be appealed to the Court of Appeal. In general, Courts of Appeal review the case fully, both regarding the facts and the ruling, within the ambit of the lodged appeal. It is not uncommon for district courts’ judgments to be overturned on appeal.