A hotly debated topic with regard to antitrust damage claims is whether defendants can rely on the passing-on defence. That is, defendants have sought to rely on the argument that direct purchasers suffered no or less damage because they "passed-on" some or all of the alleged damage to the next party in the distribution chain. While case law on this topic already existed in, inter alia, Germany, France and the United Kingdom, a judgment from the Court of Appeal of Arnhem-Leeuwarden of 2 September 2014 is the first authoritative decision on this topic in the Netherlands. This decision confirmed the availability of the passing-on defence.
The case relates to a claim by TenneT against ABB, following on from the 2007 European Commission’s Gas Insulated Switchgear ("GIS") fining decision. The Commission fined ABB Ltd. for its participation in a competition law infringement in the GIS market from 1988 until 2004. TenneT filed a claim for damages with the Arnhem District Court, arguing that it had paid a "cartel overcharge" for the GIS-installation it purchased in 1998 from ABB BV, a Dutch subsidiary of ABB Ltd. The District Court held that both ABB BV and ABB Ltd had committed an unlawful act against TenneT. Furthermore, it concluded essentially that Dutch law barred ABB from raising the passing-on defence. Both ABB entities appealed this judgment. The Arnhem-Leeuwarden Court of Appeal decided in an earlier interim judgment that the District Court had violated the fundamental principle to hear both parties on the passing-on issue and annulled the judgment.
On the merits, the Court of Appeal held that in principle, TenneT suffered a loss on the day it paid an "overcharge" on the goods that were purchased. However, subsequent events are relevant to the damages calculation. If TenneT passed on the alleged overcharge to its own customers – as ABB argued it had – the damages should be reduced accordingly. In this context, the Court of Appeal noted that, as a matter of European law, TenneT’s customers could also sue ABB for the loss they suffered as indirect purchasers of a cartelized product. Therefore, if the passing-on defence were not available to ABB, ABB would potentially face multiple liability for the same overcharge. The Court of Appeal also recognised that if indirect purchasers do not bring claims, ABB might not be stripped of all the cartel profits it earned as a result of the infringement. However, in the view of the Court of Appeal, stripping the defendant of illegal profits is not the aim of antitrust damage claims. The primary purpose of Dutch tort law is compensatory.
In a related case of TenneT against various entities of the Alstom Group ("Alstom") before the District Court of Gelderland (TenneT/Alstom), the District Court decided that also Alstom is liable for selling TenneT an overcharged GIS-installation as a result of the competition law infringement established by the Commission. With regard to the claimed damages the District Court considered, with reference to the above judgement of the Court of Appeal, that both parties should have the opportunity to submit their views on, inter alia, the passing-on of overcharges by TenneT.