In a judgment published on 22 April 2015, the Appeal Court of The Hague ("Court of Appeal") upheld an earlier ruling of a District Court in which the Dutch State was held liable for harm that a company had allegedly incurred as an addressee of an annulled ACM decision. At the same time, the Court of Appeal agreed with the District Court that not all of the ACM's actions surrounding the decision were unlawful. It limited the harmful event to the publication of a decision that was annulled on appeal.
In 2006, the ACM imposed a fine on a construction company for participating in a cartel. The decision was subsequently annulled in 2011, because the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, "CBb") found that the ACM had committed a procedural error. The construction company then started civil-law proceedings against the Dutch State, claiming that it had incurred harm because of the ACM's conduct. Such harm had allegedly occurred due to the ACM's publication of the decision as well as the generation of bad publicity on various other occasions. On first instance, the District Court of The Hague ruled that the Dutch State was indeed liable for any damage that the company had incurred as a result of the erroneous nature of the published decision. The amount of damages was to be determined in follow-up proceedings.
The Court of Appeal upheld this judgment after both parties appealed it. The Dutch State had submitted that it was not liable for any damage, because no causal link existed between the alleged harm and the ground for the decision's annulment. The Court of Appeal dismissed this. It held that once a decision has been annulled by the CBb, civil courts have to assume that the fine has been imposed unlawfully by the Dutch State. The legal consequence of this is that the resulting damages will have to be borne by the Dutch State. The presence of a causal link, however, would have to be established in follow-up proceedings.
The construction company's grounds of appeal were also dismissed. It had submitted that the District Court should also have qualified two of the ACM's other actions as unlawful: (i) the dispatching, together with the statement of objections, of a list of all the suspected companies to those companies in 2005; and (ii) the ACM's statement to a professional journal, after the annulment of the decision in 2011, that it stood by its finding of infringement given that the CBb did not conduct a substantive assessment of the decision. The Court of Appeal, however, ruled that the mere dispatching of the list did not equate to publishing it and that the ACM's statement in the journal was not incorrect. The case is now back at the District Court for an assessment of the damages.
This judgment demonstrates that the Dutch practice concerning regulators’ liability for decisions annulled on appeal differs from that at the EU level. Under EU law, annulment of a Commission decision does not imply that the Commission acted unlawfully. In fact, EU case law shows that the hurdles for establishing non-contractual liability of the Commission for harm flowing from annulled decisions are high. When assessing whether the Commission is liable for the harm flowing from annulled decisions, the EU Courts review whether the mistakes made by the Commission are sufficiently manifest to render the behavior unlawful. Dutch courts consider the unlawful character of the regulators' act established if a decision is annulled. It suffices for addressees of annulled decisions to demonstrate the existence of harm and the causal link between the decision and the harm.