On 8 October 2015, the Dutch ministers of Justice and Economic affairs published a proposal for an act implementing the EU Antitrust Damages Directive (the “Proposal“). The Proposal would see the Damages Directive implemented in new separate sections of the Dutch Civil Code (“DCC“) and the Dutch Code of Civil Procedure (“DCCP“) that will apply specifically to EU competition law infringements.
The Proposal largely follows the provisions of the Directive. These provisions concern inter alia, the tortious nature of EU competition law infringements and the presumption that they cause damage, joint and several liability for joint actions, the validity of a passing-on defence and an evidentiary presumption that overcharges are passed on to indirect purchasers (see our April 2014 Competition law newsletter ).
In line with the Directive, the proposal states that immunity applicants will only be jointly and severally liable towards their own direct and indirect customers and suppliers, unless claimants cannot obtain redress from any of the other cartel participants.
The Proposal adopts the provisions on the protection of leniency and settlement submissions of the Damages Directive. Disclosure cannot be ordered for leniency documents or settlement submissions, and such documents cannot be used as evidence. Certain other documents, such as replies to requests for information, can only be disclosed after the competition authority has closed its proceedings. With regard to the disclosure of evidence, the explanatory memorandum describes that the current system already provides for broader disclosure than required on the basis of the Directive.
In line with the current limitation periods for torts, the Proposal suggests a subjective limitation period of five years and an objective limitation period of twenty years. Following the Directive, the subjective limitation period only starts to run when the infringement has ended and the claimant is aware of the behaviour, infringer and damage. The subjective limitation period is interrupted when an investigatory act is performed, or proceedings are initiated, by a competition authority. Also in case of a consensual dispute resolution process the limitation period is interrupted. In that case a new limitation period of a maximum of three years starts to run.
The Proposal does not contain provisions on the prevention of overcompensation of claimants and multiple liability (Articles 12(1) and 15 of the Damages Directive). According to the explanatory memorandum, the legislator considers that this is already sufficiently safeguarded under Dutch law.