On 10 June 2015, the District Court Gelderland rendered a judgment in a dispute between TenneT and Alstom. In 2007, the European Commission found Alstom had infringed Article 101(1) TFEU by colluding with several other producers of gas-insulated switchgear ("GIS"). TenneT claimed that as a result of this infringement it paid an overcharge of EUR 14.1 million for a GIS-installation it bought from Alstom. The District Court agreed with TenneT and awarded the entire amount of damages claimed. The judgment is noteworthy for a number of reasons. First of all, it is the first time a Dutch court awarded damages in a "follow-on case". Moreover, the judgment shows that Dutch courts take varying approaches to the concept of "passing-on" under Dutch law.
In general, the concept of passing-on refers to the situation where a direct purchaser was able to raise the downstream prices to its customers and thus "pass-on" some or the entire alleged overcharge to the next party in the distribution chain. As a result, the direct purchaser suffers no or reduced damage, while the indirect purchaser suffers the entire damage, or a part thereof. The Court of Appeals Arnhem-Leeuwarden ruled in a related case (now under appeal) between TenneT and ABB that in such circumstances, the amount of damages awarded to the direct purchaser should be reduced with the damage passed on to the indirect purchaser.
Referring to the Court of Appeal's judgment in TenneT/ABB, the District Court Gelderland decided that Alstom could invoke the passing-on defence. However, the District Court also considered that under Dutch law, the ability to pass-on overcharges should be regarded as a "collateral benefit" arising from the same event as the damage. The Dutch Civil Code provides that collateral benefits can only be deduced from the amount of damages awarded "to the extent that is reasonable".
In this case, the District Court ruled that it would be "unreasonable and even unjust" to take the collateral benefit obtained by TenneT as a direct purchaser into account. Therefore, the Court awarded the full amount of damages claimed, without deducting the subsequent price increase TenneT charged to its own customers. The District Court considered that the availability of the passing-on defence is intrinsically linked to the right of the indirect customers to claim damage that was passed-on to them. In the current case, the District Court considered it unlikely that TenneT's customers would come forward to claim damages from Alstom. The District Court furthermore considered it likely that the damages awarded to TenneT would also benefit its customers (i.e. Alstom's indirect customers), because TenneT would either lower its prices or pay more to its sole shareholder: the Dutch government.