This last year Dutch courts have clarified the rules on what is known as the “passing on” defence. The European Commission had previously stated that it considered such a defence legitimate, but the rulings of Dutch courts in such cases were not yet unequivocal. They were able to state their opinion on this point again this last year. The appeal in the ABB/TenneT case is particularly relevant, since the lack of clarityregarding the passing on defence is apparent from that case. In the appeal proceedings the Arnhem-Leeuwarden Court of Appeal ultimately found that a passing on defence of ABB in relation to TenneT was legitimate and subsequently accepted that defence. In doing so the Court of Appeal wished to avoid TenneT being compensated for loss that it had already passed on and ABB being held liable several times for the same loss. The Court of Gelderland confirmed that trend in the TenneT/Alstom case. The Dutch courts have presumably done so to conform to the private enforcement directive of the European Commission (the “Directive”), adopted in November 2014.
The European Commission’s aim in introducing this long-awaited Directive is to simplify the national proceedings regarding cartel damage claims. The Directive is based on the assumption that cartel infringement causes harm. The Directive entitles cartel victims to full reimbursement of the loss incurred by them as a result of the cartel. Civil damages actions must be instituted in order to obtain such compensation. However, claims for damages based on infringement of EU or national competition law usually require a complex factual and economic analysis, which complicates follow-on actions. For instance, the claimant often does not have the evidence required to corroborate a claim based on infringement of competition law. The Directive therefore obligates Member States to ensure that national courts can order the national competition authority in a follow-up action to give access to evidence.
At the same time the Directive is intended to protect the European leniency programme. The leniency programme guarantees immunity from penalties for cartel participants if they themselves report the cartel. It is an important means of investigation for the European Commission. If access were given to information obtained by means of the leniency programme, that programme would lose some of its appeal and would probably be used less, which might result in fewer cartels being discovered. The European legislature therefore expressly recorded in the Directive that leniency statements may not be disclosed. The judgments of the European Court of Justice in the Pfleiderer and Donau Chemie have thereby been reversed; in those cases the Court of Justice refused to guarantee the secrecy of leniency statements by ruling that it is up to the national courts in a specific case to weigh the public interests involved.
The introduction of the Directive therefore makes it (even) more attractive to institute follow-on damages actions. In order to comply with the Directive, Dutch legislature will have to makes several changes, for instance regarding the aforesaid access to evidence of the parties to civil damages actions. The Directive furthermore provides that injured parties have five years in which to institute damages actions after they become aware (or can reasonably be deemed to have become aware) of the infringement of competition law. If a penalty decision of the competition authority becomes irrevocable, that expiry period will be one year.
Member States are not required to implement the Directive in their national legislation until two years after its publication. Member States therefore have until 27 December 2016 to bring their national legislation in line with the Directive, but it is likely that the Dutch legislature will present a bill for the enactment of the Directive this year already.
It is furthermore relevant in 2015 that the Amsterdam Court will most likely (nevertheless) have to pass judgment in the follow-on actions regarding the airfreight cartel. This is due to two judgments passed by the Amsterdam Court of Appeal (EWD/KLM and KLM/Lufthansa). The Amsterdam Court had initially found in both cases that the proceedings had to be stayed until the European Commission’s decision or the EU judicature’s judgment on that decision had become final. The Amsterdam Court of Appeal set aside those judgments and referred the cases back to the Court, ruling that KLM and Lufthansa would have to file a Statement (a) to explain that they were reasonably opposing the Commission’s decision in the proceedings before the EU judicature and (b) to present the defences that they wished to file, to allow the national court to assess whether and to what extent the assessment of those defences depends on the validity of the European Commission’s decision. It is then up to the Court to rule whether the proceedings should be stayed until the European Commission’s decision or the EU judicature’s judgment on that decision has become final.