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General introduction to the legislative framework for private antitrust enforcement

i Legal basis

The legal framework for antitrust damages claims is the Dutch Civil Code (CC), and the specific competition legislation prescribed in the Competition Act (CA), the TFEU and the Dutch Code of Civil Procedure (CCP). Most cartel damages claims are based on an alleged unlawful act conducted by the alleged cartelist. To succeed, a claimant must establish that the defendant has committed an unlawful act that is attributable to it and that caused the claimant to suffer damage. Whether a breach of national or European competition law in itself will amount to an unlawful act against the claimant depends on whether the breached rules are aimed at preventing the damage suffered by the claimant.

A relatively limited number of national substantive and procedural rules have been amended and added to the CC and CCP respectively by the Implementing Act Directive Private Enforcement of Competition Law (Implementing Act) to implement the Directive on antitrust damages actions adopted by the Council of the European Union on 26 November 2014 (EU Damages Directive). The Implementing Act entered into force on 10 February 2017. The new statutory provisions are applicable to damages claims relating to infringements of EU competition law only, and not yet to damages claims relating to infringements solely of national competition law. A draft bill, which will broaden the scope of the Implementing Act, was published in 2017 to allow interested parties to react to the proposed legislative text. The draft bill has not yet been submitted to the Parliament. Moreover, pursuant to Article III of the Implementing Act, the added statutory provisions regarding the stay of proceedings and regarding the disclosure of evidence are not applicable to actions for damages of which the Dutch court was seised prior to 26 December 2014.

ii Limitation

The Implementing Act provides for a specific prescription period for competition law-related claims for damages (Article 6:193s CC). This provision stipulates:

  1. a five-year limitation period, which will start to run the day following the day on which the infringement has ceased and the claimant has become aware, or can reasonably be expected to have become aware, of the infringement, the fact that the infringement caused harm to it and the identity of the infringer; and
  2. a 20-year limitation period, which will start to run the day following the day on which the infringement has ceased.

To illustrate: regular claims for damages become time-barred five years after the claimant has become aware of the damages and the person liable for the damages, provided that no claims can be brought 20 years after the damage-causing event (Article 3:310 CC). The Explanatory Memorandum to the Implementing Act (Explanatory Memorandum) seems to indicate that there is no reason to deviate from the standard relative and absolute limitation periods (five or 20 years, respectively) in Article 6:193s CC, as Article 10 Paragraph 3 of the EU Damages Directive holds that Member States will ensure that the limitation periods for bringing actions for damages are at least five years. However, other noteworthy differences between Article 3:310 CC and the new Article 6:193s CC are that the latter requires that the infringement has ceased before a limitation period starts running and the fact that the claimant can reasonably be expected to have become aware of the infringement is sufficient to trigger a limitation period as well (instead of 'has become aware').

Hereinafter, the relevant case law preceding the Implementing Act will be discussed. This case law is still relevant for the interpretation of the concept of 'has become aware', which has remained applicable to actions for damages of which the Dutch court was seised prior to 26 December 2014. Pursuant to Article 3:310 CC, for the short limitation period to start running the claimant must be aware of the damage and the liable person ('ought to have been aware' is insufficient). Depending on the circumstances of the case, it is therefore possible that the limitation period will have started (and run out) before the Netherlands Authority for Consumers and Markets (ACM) or the European Commission decides there has been a breach of Article 6 of the CA or Article 101 TFEU.

For example, in 2007 the Rotterdam District Court found that a claim for damages by CEF, a wholesale distributor of electro-technical fittings, against the individual directors of FEG, a Dutch association in the electro-technical fittings sector, was time-barred. The Court ruled as irrelevant the fact that the European Commission had only given its decision that FEG had breached Article 101 TFEU in 1999. CEF was held to have already been aware of the damage and the liable person in 1991 when it submitted a complaint to the European Commission regarding FEG's conduct. Because CEF first sent a letter claiming damages from the individual directors in 2000, and the limitation period had not been interrupted in time, the claim was dismissed.

In contrast, in a judgment relating to the Gas-Insulated Switchgear cartel, the Oost-Nederland District Court rejected the defendants' defence that the limitation period had started in May/June 2004 when the European Commission and the defendant – being the leniency applicant – issued a press release indicating that an investigation had been started into a possible Gas-Insulated Switchgear cartel in which the defendant had participated. The Court ruled that the publication only stated that an investigation had started that, in the circumstances, was insufficient to make the claimant aware of the fact it may have suffered damage. The Court did not accept that the claimant should have started an investigation of its own in response to the May/June 2004 publication, citing that, according to the European Commission, the cartel members had done their utmost to keep the cartel's activities secret.

Although Spanish, Finnish, Swedish, Czech, Slovak and Austrian law is applicable to the claims, in one of the Sodium Chlorate cases, the Amsterdam District Court ruled that it is up to claimants to explain what essential information was included in the summary of the non-confidential version of the European Commission's decision, but not in the press release, and why such information means that the required awareness did not exist when the press release was issued. Furthermore, the ability to formulate a claim during a period of one year may suffice for the determination that such claim is time-barred without violation of the relevant EU law principle of effectiveness.

In the Bitumen case, the Rotterdam District Court rejected Shell's argument that the claim was time-barred under Dutch law. It found that the limitation period had not started before the European Commission decision of 13 September 2006. According to Shell, the claimant was already aware of the damage and the liable person at the time that the European Commission published its first press release about an investigation into the bitumen sector in October 2002, or at least since October 2004, because the possible Bitumen cartel was frequently covered in the media. In this case, the claimant's actual supplier of bitumen was Kuwait Petroleum, not Shell. The Court ruled that the claimant could not have deduced from the presented newspaper articles that Kuwait was one of the cartelists, or that the cartel had raised the prices of non-cartelists. Therefore, the claimant could not have known of any possibility to hold Shell, as one of the members of the cartel, accountable for its damage.

The Arnhem-Leeuwarden Court of Appeal found that a 2014 European Commission press release announcing investigations into a possible GIS cartel was not sufficient to start the limitation period. The press release did not include the names of the companies being investigated or the nature of the alleged anticompetitive behaviour. The press release also expressly stated that the investigations did not implicate the companies in any wrongful act. Therefore, the press release did not lead to the required awareness.

In one of the CRT cases, the Oost-Brabant District Court decided on limitation periods under Turkish law and issued a ruling along the same lines as those of the above-mentioned courts.

Finally, the newly enacted Article 6:193t CC provides for two grounds for extension of the limitation period for future cartel damages claims. The first ground regards an extension between the parties involved during a consensual dispute resolution process (Paragraph 1 of Article 6:193t CC). In the case of mediation, such process ends when one of the parties or the mediator has notified in writing to the other party that mediation has ended or because pending the mediation no actions have been performed during a period of six months. The second ground for an extension relates to a competition authority performing an act within the context of an investigation or proceedings with regard to the infringement of competition law (Paragraph 2 of Article 6:193t CC). The extension commences on the day following the day that the limitation period has lapsed. The duration of the extension is equal to the period required for establishing the final infringement decision or alternatively terminating the investigation or proceedings with regard to the infringement of competition law, extended by one year.