The Netherlands appears to be an attractive jurisdiction for cartel damages proceedings for both cartel victims and cartel members. In two recent rulings the Dutch courts have kept up the pace.

The first ruling was handed down by the Amsterdam Court of Appeal in the air-cargo cartel damages case. The Amsterdam District Court had ruled that the private damages proceedings must be suspended pending the airlines' appeal against the European Commission's cartel decision before the European Court of Justice (ECJ) (on the basis of Masterfoods).

According to the district court, the ECJ's judgment regarding the nature, duration and scope of the airlines' participation in the infringement might affect the questions of whether the airlines had acted unlawfully in respect of the claimants. Not only was the airlines' participation in the infringement relevant in this respect, but also the periods, locations and manner in which the airlines participated, and whether their participation concerned services or shipments delivered to the claimants.

The court of appeal did not agree and held that suspending proceedings pending an appeal before the EU courts is necessary only if there is reasonable doubt about the validity of the commission's decision.

Consequently, the airlines will first need to specify which arguments they wish to put forward in order for the national court to decide whether these relate to the validity of the commission decision and thus necessitate the delay of the proceedings pending the ECJ's ruling.

That proceedings should be fast, but not overly so is illustrated by the second ruling, handed down by the Arnhem-Leeuwarden Court of Appeal. The court of appeal in this case found that the district court had dismissed the passing-on defence without a proper debate between the parties. It should instead have limited itself to establishing liability for the damage caused. At first instance, the district court had ruled that ABB should compensate TenneT, the operator of the Dutch electricity grid, for damages suffered as a result of the gas-insulated switchgear cartel (for further details please see "Court issues first substantive ruling on cartel damages").

Although the exact amount of damages to be awarded still needs to be established in follow-up proceedings, the district court indicated that a comparison between offers made by ABB during and after the cartel – resulting in a 54% price overcharge, according to a report submitted by TenneT – would form the basis for a suitable calculation method.

ABB's argument that TenneT suffered no loss because it passed on the overcharge to its customers was rejected. Potential 'benefits' gained by a cartel victim may be offset against the damage sustained only if:

  • there is a sufficient causal link between the benefits and the harmful event; and
  • it is reasonable to deduct these benefits from the damages to be paid by the cartel participant.

The court of appeal considered the district court's ruling on the passing-on defence too expeditious and ruled that ABB's interest in staying the follow-up proceedings in order to argue fully the passing-on defence outweighed TenneT's interest in a speedy outcome, particularly considering that ABB promised to proceed swiftly.

For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (jolling.depree@debrauw.com, erik.pijnackerhordijk@debrauw.com or jaap.dekeijzer@debrauw.com). The De Brauw Blackstone Westbroek website can be accessed at www.debrauw.com.

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