Remedies

Compensation

What forms of compensation are available and on what basis are they allowed?

Claimants who have incurred losses as a result of a violation of competition law can be awarded damages. Damages are compensatory and based on claimants’ actual losses (in terms of additional costs and foregone profits). Alternatively, claimants may claim reimbursement of payments unduly made and, or compensation for undue enrichment.

Where the action concerns an agreement that is found to violate competition law, the agreement can furthermore be declared void in whole or in part. Courts can also provide a remedy by issuing an injunction, which, if necessary, can be imposed subject to a periodic penalty payment.

Other remedies

What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?

On the request of the claimant and provided that the claimant can show urgency (a low threshold in practice), courts can provide an interim remedy by imposing an injunction until a final judgment is rendered in the matter. A defendant can, for example, by injunction, be ordered to stop the allegedly unlawful practice. Injunctive relief can be obtained during a procedure on the merits or through preliminary relief proceedings. Injunctions can be declared immediately enforceable, regardless of whether the judgment has been appealed. On the other hand, only in exceptional cases may there be room for awarding an advance payment of all or part of the damages claimed in the main case by way of an interim measure.

Punitive damages

Are punitive or exemplary damages available?

Exemplary or punitive damages are not available, as damages are meant to be compensatory and based on claimants’ actual losses. However, despite not yet being applied in practice in antitrust damages cases, courts may set the amount of damages corresponding to the level of extra profits realised by the defendant as a result of its anti-competitive conduct.

Interest

Is there provision for interest on damages awards and from when does it accrue?

For the payment of damages, statutory interest accrues after the expiration of the deadline for payment. For cases based on tort, payment is due from the date the damage can be claimed (ie, the damage has been incurred).

Consideration of fines

Are the fines imposed by competition authorities taken into account when setting damages?

Any fines imposed by competition authorities are not taken into account in determining the amount of damages to be awarded, based on the principle that damages are compensatory and based on the damage the claimant actually sustained. However, damages already awarded through redress schemes are taken into account in the calculation.

Legal costs

Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?

In principle, the ‘loser-pays’ rule applies, meaning that the party winning a court procedure can recover its legal costs from the losing party. However, the compensation for legal representation is set at a fixed amount that normally represents only a limited part of the actual costs incurred.

Joint and several liability

Is liability imposed on a joint and several basis?

Save exceptions for small and medium-sized enterprises (SMEs) and successful immunity applicants, undertakings are jointly and severally liable. Under certain circumstances, an SME’s liability can be limited to its own direct and indirect purchasers. The liability of successful immunity applicants with regard to contribution in relation to the other defendants is limited to compensation of the damages of its own direct and indirect purchasers and suppliers in proportion to the extent to which circumstances attributable to the immunity applicant have contributed to the damage.

Contribution and indemnity

Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted?

Dutch tort law provides for an obligation for parties that are found jointly and severally liable for compensation of damages to contribute equally to the compensation amount, unless the circumstances of the case require the contributions to be distributed differently. This provides a basis for contribution claims among defendants. The rules for contribution for defendants who have received immunity with respect to fines for a competition infringement and for defendants who have entered into settlement with claimants deviate from this general contribution obligation. Contribution claims can be brought in the context of the principal claim or in proceedings between defendants after a judgment or settlement in the principal claim has been reached.

Passing on

Is the ‘passing on’ defence allowed?

With the Implementing Act, a specific legal basis determining that parties can use the defence that the claimant passed on the higher costs caused by the competition law infringement has been formally adopted in Dutch law.

It should also be noted that before the introduction of the Antitrust Damages Directive through the Implementing Act, a passing-on defence had already been accepted in principle in a damages claim procedure following the Gas Insulated Switchgear case. In the ruling of a dispute between TenneT and ABB in 2016, the Supreme Court held that the passing-on defence can both relate to the amount of profit the claimant enjoyed as a consequence of the wrongful conduct insofar that it is reasonable and function as a defence to reduce the amount of damage the claimant alleges it has suffered. However, the deduction from the amount of damages awarded based on passing-on must always be ‘reasonable’, which was found not to be the case in the matter between TenneT and ABB in a subsequent ruling.

Other defences

Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?

Defendants can use several other defences against alleged liability for damages, the most relevant being:

  • force majeure;
  • the infringement being the result of government compulsion; and
  • the infringement being the result of complying with a statutory provision.

It should, however, be noted that these defences are raised only very rarely in actions for damages relating to competition law infringements.

Alternative dispute resolution

Is alternative dispute resolution available?

In principle, parties are free to decide to settle a dispute through arbitration. The Amsterdam District Court has, however, held in a damages claim case related to the Sodium Chlorate cartel that a general arbitration clause in a contract does not cover damage claims resulting from alleged breaches of competition law (the decision was subsequently confirmed by the Amsterdam Court of Appeal). If the arbitration clause in a contract is specifically formulated to include disputes arising from damage claims related to breaches of competition law, however, the defendant can rely on such an arbitration clause, as confirmed in a judgment of the Court of Justice of the European Union on a preliminary question from a German local court related to the same Sodium Chlorate case.

If a valid agreement on settlement of the dispute through arbitration has been reached and is relied on by (one of the) parties, the Dutch court before which a claim is brought will declare lack of jurisdiction to hear the claim.

Judges have the possibility to refer parties to a dispute to mediation. There are, however, no examples of such decisions in antitrust damages cases to date, with mediation not being a realistic option in such cases.