The Rotterdam District Court rejected an interim application to stay the proceedings in a damages claim pending the final judgment by the EU courts on the European Commission's decision in the road bitumen cartel.16 The court held that staying the proceedings ex Article 16 of Regulation 1/200317 was not necessary now that a number of (preliminary) questions can be answered according to national law prior to a final judgment by the EU courts.18
MNO Vervat-Wegen (MNO) acquired road construction company Koop Tjuchem in 2006 and initiated the current "follow-on" damages action19 against Shell to recover the damages claimed to have been suffered by Koop Tjuchem in the period 1994-2002 as a result of the road bitumen cartel. Shell requested a stay of proceedings on the basis of Article 16 of Regulation 1/200320 pending Shell's appeal against the Commission's decision before the EU courts on inter alia liability issues, the duration of the cartel and its role of leader in the infringements. According to Shell, Article 16 of Regulation 1/2003 compels the court to stay its proceedings until a final judgment by the EU courts in order to avoid conflicting decisions. MNO, however, argued that it is not necessary to await the EU courts' final judgment since Shell acknowledged its participation in the road bitumen cartel and provided the Commission with evidence of the infringement during its investigation.
The court ruled that Shell's arguments were insufficiently compelling to stay the proceedings ex Article 16 of Regulation 1/2003, particularly since MNO could be hampered in its production of evidence due to the period during which the cartel existed and the number of years a final judgment by the EU courts would probably take. The court considered that the questions on (i) the assignment of Koop Tjuchem's damages claim to MNO and (ii) the prescription of the right of action can already be answered according to national law, irrespective of the outcome of the EU court appeal procedure. The court therefore deemed it practical to continue the proceedings and rule on those questions first.