As we predicted at the start of this year, the passing-on defence again played a role in cartel damage actions in 2016. The Dutch Supreme Court recently addressed the legal basis of that defence in its TenneT/ABB judgment. It found that courts are free to assess the loss on the basis of either vermogensvergelijking (a comparison of between the actual financial situation and the situation if the harmful event had not occurred) or voordeelstoerekening (deduction of collateral benefits). The latter approach requires a causal relationship between the benefit and the wrongful act, however.
Although the Netherlands is generally regarded as a favourable forum for claiming cartel damage (see here, here and here), a claim filed by East West Debt recently failed on several points in an action instituted in respect of the lifts cartel. That judgment is particularly interesting because the court ruled that the question whether East West Debt was entitled to damages from the cartel participants’ parent companies is governed by Dutch law. The court furthermore found that, although parent companies can be held liable under European competition law for the actions of their subsidiaries, in principle a company is not liable under Dutch law for loss resulting from a wrongful act by another company, also not if those two companies form part of the same group. The appeal proceedings will most likely be conducted this year. If the Court of Appeal (and later possibly the Supreme Court) upholds the judgment, the aggrieved parties may, in principle, recover their cartel damage in the Netherlands only from the legal entities that actually took part in a cartel.
The Directive on Private Enforcement of Competition Law Implementation Act (i.e. the Act implementing the Directive on Antitrust Damages Actions (the “Directive”)) is furthermore expected to enter into force this year. The Directive entered into force on 26 December 2014 and is intended to make it easier for claimants to recover damages for competition law infringements from the cartel participants. The draft implementation act was presented for comment on 8 October 2015, after which the legislative proposal was published on 9 June 2016. The Member States must convert the Directive into national law by 26 December 2016 at the latest. Although the Directive will have little impact on claims filed in the Netherlands, it is expected to make the Netherlands and even more appealing forum for cartel damage claims.
The near future will have to show whether and to what extent the United Kingdomwill be able after the Brexit to retain its position as one of the most appealing forums for cartel damage claims. It cannot be precluded that legal uncertainty on the consequences of the Brexit will prevent claimants from instituting proceedings in the United Kingdom. It will most likely become apparent whether the United Kingdom has lost or retained its appeal as a forum when the first claims are filed in respect of e.g. the truck cartel.
Another interesting development that may make reduce the United Kingdom’s appeal as a forum for follow-on cases is the judgment recently passed by the High Court in which a claim for damages in the amount of EUR 1 billion was disallowed. The reason for this was that the claim related to damage caused by the cathode ray tube cartel that had been incurred outside the EU. A follow-up action that is still pending in the United Kingdom and is likely to receive a great deal of attention this coming year is that resulting from a commitment decision of the European Commission in relation to Visa. A number of online travel agencies recently announced that they would join the pending claim proceedings of several airline companies, among others. Transport for London has also instituted a civil action in the United Kingdom against Visa and MasterCard. Those parties claim to have incurred loss as a result of excessive interbank charges by Visa (and MasterCard). The Competition Appeal Tribunal (“CAT”) in London recently ruled that Mastercard’s credit card fee had an anticompetitive effect. In the CAT’s opinion Sainsbury was consequently entitled to USD 89 million in damages. The passing-on defence presented by MasterCard was rejected. MasterCard has appealed the judgment.