Contributed By Nysingh Advocaten-Notarissen N.V
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.