In an earlier blog we already wrote that the Netherlands remains a popular country to file cartel damage claims. This is still the case, and the Netherlands will continue to be the promised land to recover damages from cartels in 2017. In addition, a number of important rulings will be issued in 2017. In the past, many court decisions have been rendered on issues such as the jurisdiction of the Dutch courts, inspection of documents, and staying of proceedings. For 2017, we can expect more clarity on important issues such as limitation periods and damages. In addition, the Cartel Damages Directive will be implemented in the Netherlands and new cases will be launched in connection with the Trucks cartel.
Limitation issues are inherent to follow-on claims. Cartels often last for a relatively long period of time and are kept hidden by their members. After a cartel has been discovered, it often takes several years before a fine is imposed and the cartel's existence is widely publicised. Cartel damages cases are generally only brought after fines are imposed. It is not unusual for ten years to pass between the commencement of a cartel and the cartel damages case. In the limitation period regimes of certain European countries, this carries the risk of claims lapsing even before the injured parties become aware of the cartel.
An excellent example of limitation period issues that could arise in cartel damages cases were present in the pre-stressing steel case. The claim for damages brought by Deutsche Bahn was rejected at the end of 2016 by the Limburg District Court because the claims had lapsed. In 2017, it is likely that final judgments will be handed down in this regard. The main issues are questions as to when the limitation period starts and how the court deals with a limitation period that expires before the injured parties even become aware of the cartel.
An ongoing controversial issue in cartel damages cases is the passing-on defence. In such a defence, cartel members argue that the injured parties ‘passed on’ the damage to their customers. We have discussed this issue extensively (here, here and here). As we reported earlier, the Dutch Supreme Court issued an important judgment on this defence in 2016. In 2017, this judgment may contribute to a more substantive debate on damages suffered and less about legal qualifications, from which both the injured parties and cartel members will benefit.
Access to evidence is another hot topic in cartel damages proceedings. This issue has been addressed in our blogs before (see here, here and here). In the damages case regarding the paraffin wax cartel (we previously wrote about an interim judgment in this case), the District Court of The Hague issued a judgment on the obligation to retain evidence. The defendants, i.e. the paraffin wax manufacturers, requested access to documents in order to be able to substantiate their passing-on defence. Certain (old) documents were probably no longer available. The court found that the claimant could and should from the very beginning have taken account of the possibility of a passing-on defence. If it turns out that documents are no longer available, courts could in due course attach consequences to this.
Although it remains to be seen what the ultimate implications will be, the lesson to be learnt from this judgment is that parties which are involved in cartel damage proceedings must retain as much evidence as possible, even if they are not obliged to do so by law.
Implementation of Cartel Damages Directive
The implementation of the Cartel Damages Directive is the final stage in the long road towards more effective follow-on damages claims in Europe. The Cartel Damages Directive clarifies a number of issues, such as the rules on limitation periods, the existence and passing on of damages, and the gathering of evidence. In the current situation there are considerable differences in the rules that are being applied in different Member States. This leads to highly inefficient proceedings in which matters must be assessed under different laws of many different countries. If these differences will be removed with the implementation of the directive, this will result in a considerable improvement in efficiency, thus enabling the parties and courts concerned to deliver results considerably sooner. At the time of writing of this blog, the Dutch Implementation Act had just been approved by the Senate and published in the Bulletin of Acts and Decrees.
Uncertainty in the United Kingdom
London is and has always been one of the most important venues for cartel damages cases. For example, in 2016 damages were awarded in one of the Master card cases. Final decisions were also made on the limitation period regime applicable to cartel damages claims (the limitation regime of the law that applies to the claims), on whether cartel damages cases are eligible for the fast-track procedure (cartel damages cases will not readily be eligible for the fast-track procedure), and on the geographical scope of a claim for damages in relation to a cartel (no claim can be filed if the cartel was located entirely outside the EU). The last mentioned judgment has however been appealed in the beginning of 2017.
These developments in case law are currently overshadowed by uncertainties concerning the consequences of Brexit. Since it is not yet clear what form Brexit will take, future developments involving cartel damages in the United Kingdom are anybody’s guess. For example, it is unclear how issues like the jurisdiction of the British courts will be handled in the future, what law will apply to cartel damages claims, and whether the orders of the European Commission will continue to have binding force. Until these questions are answered, it is quite conceivable that more and more of these cases will move to continental Europe.
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