The European Commission imposes heavy fines on companies that are found to have infringed competition rules. Companies that suffered losses as a consequence of this infringement, often try to seek damages in follow-on court proceedings. For reasons of efficiency (among other reasons), cartel damage claims are frequently filed collectively. In the Netherlands, there are roughly two ways to do so.
Assignments, power of attorney
The first option to litigate collective redress is through the assignment of claims. This method is frequently used in cartel damage proceedings, including proceedings on the air cargo, truck and lift cartel. Injured parties assign their claim to a ‘claim vehicle’ that litigates against the defendants in its own name.
Additionally, parties may choose to bundle their claims by giving one person a power of attorney to initiate proceedings on behalf of the parties. In cartel damage cases, powers of attorney are mostly used as a backup in case the assignments are considered legally invalid.
Statutory collective action (3:305a DCC), collective settlement
The second option to pursue collective redress is on the basis of article 3:305a of the Dutch Civil Code (DCC). This provision makes it possible for a claim vehicle to request a declaratory decision in collective action stating that the cartel members have committed a wrongful act against the injured parties (regardless of whether or not they were part of the collective action). In order for a collective action to be successful several statutory requirements need to be met. Also, it is not allowed for a collective action to file a monetary claim. As a consequence, the statutory collective actions are (so far) less often used to recover cartel damages.
The statutory collective action is regularly used as onset for a group settlement. Group settlements (Articles 7:907 DCC et seq.) facilitate parties to request a judge to declare a settlement between the defendants and the collective action vehicle universally binding amongst other injured parties. The injured parties that fall within the scope of the objects clause contained in the articles of association of the collective action vehicle will subsequently be bound to the settlement, unless a party explicitly chooses to opt-out. This method thus makes it possible for defendants to settle a claim definitively with an undetermined number of injured parties.