Last Updated June 13, 2019

Law and Practice

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Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

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.

  • The request must relate to documents sufficiently specified (fishing expeditions are not allowed).
  • The requesting party must have a legitimate interest in requesting the disclosure of the documents.
  • The requested documents must relate to a legal relationship (including tort) contractual or non-contractual – to which the claimant is a party.

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.

Nysingh Advocaten–Notarissen N.V

Burg. Roelenweg 11
8021 EV Zwolle

+31 (0)88 752 00 00

info@nysingh.nl www.nysingh.nl
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Authors



Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

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