On 10 May 2017 the Amsterdam District Court rendered an important judgment in cartel damages proceedings following on from the EC Decision of 11 June 2008 regarding the sodium chlorate cartel (COMP/38695). According to the court, claims under several national legal systems had expired under the applicable statutory limitation periods, which did not result in a breach of the EU law principle of effectiveness. The court reached this decision after ruling that the damages claims had been validly assigned.

Introduction

In 2011, claim vehicle CDC brought a cartel damages claim before the Amsterdam District Court against a number of producers of sodium chlorate. Twelve groups of purchasers had assigned and transferred to CDC any and all 'damage claims' which they had against any and all members of the 'cartel' resulting from the 'cartel' and from 'product' purchases during the 'cartel period.'

Validity of the assignment of claims

The defendant argued that the claims were inadmissible, as CDC had not submitted the agreements underlying the proceedings to the court. CDC then submitted copies of all the deeds of assignment and underlying titles related to the claims. The court ruled that under the applicable Dutch law rules, the agreements and deeds of assignment contained sufficient proof of a valid and determinable assignment of claims, which did not breach the prohibition of fiduciary transfers, even though a part of the purchase price would be partially calculated on the basis of the result of the proceedings. (grounds 4.2-4.17) The court furthermore rejected the argument that the litigation and financing set-up used by CDC was contrary to public policy or good morals, and that the underlying assignment agreements were void, as it would be very difficult to enforce a costs order against CDC, which it was argued was an 'empty litigation vehicle'. In this context the defendant had referred to the ruling of the Landgericht Düsseldorf of 17 December 2013, upheld by the Oberlandesgericht Düsseldorf on 18 February 2015 (VI-U (Kart) 3/14). The court, however, considered that CDC had transferred a considerable amount to a trust account to cover potential adverse costs orders, which deviated from the German case referred to by the defendant. Moreover, the court noted that the costs order risks in Germany were in general considerably higher than those in the Netherlands (grounds 4.18-4.20).

Statute of Limitations

For the assessment of the defendant's reliance on the statute of limitations defence, the court established the following facts (ground 4.23):

  • The cartel had been active in the period from 21 September 1994 to 9 February 2000.
  • The Commission had conducted an investigation that lead to a decision in June 2008, and on 11 June 2008 published a press release regarding the decision.
  • On 17 June 2009, the Commission published a summary of its decision.
  • In October 2009 it published the non-confidential version of the decision.
  • The press release and the decision were known in the market.
  • CDC filed the initial summons on 31 May 2011. In this summons, the damage had not been quantified.

Applicable law

First of all, the court stated that the national law that applies to an individual claim would determine the limitation period, as well as the commencement date of such a period. In this case, the dispute on statutory limitation periods was governed by Spanish, Finnish, Swedish, Czech and Slovak law.

Principles of EU law In compliance with the relevant case-law of the Court of Justice of the EU, the court took the principle of effectiveness into account. The court stated that Member States may establish and enforce rules on the limitation period for legal actions, if these rules – having regard to the facts of each specific case- do not make it extremely difficult or impossible for an aggrieved party to exercise its right to claim compensation.

Other starting points In the relevant Member States, a claimant could file an initial summons in a legal action for compensation if the claimant was aware of the basis of liability, and was able to formulate a claim on that basis. In these Member States, it is not required that the damage is quantified. In reply to the defendant's statute of limitations defence, CDC took the position that there had been an after-effect of the cartel 'up to 2002’, and argued therefore that February 2000 should not be considered as the end date of the cartel. The court ruled that CDC had insufficiently developed this claim in comparison to the arguments put forward by the defendant. As a result the court did not take this alleged after-effect into consideration in its assessment according to Spanish, Finnish, Swedish, Czech and Slovak law (ground 4.27).

Read more on the assessments under Spanish, Finnish, Swedish, Czech and Slovak law

Conclusion

In summary, it can be argued that the Dutch court is of the opinion that awareness of the basis of liability can in principle be obtained from a press release and a summary of a decision of a competition authority. Moreover, if the failure to bring a claim on the basis of that information within one year of first becoming aware of the information results in that claim becoming time-barred, this will not be a violation of the relevant principles of EU law.