On 2 September 2014, the Arnhem-Leeuwarden Court of Appeal ("the Appeal Court") accepted a passing-on defence by the Swiss technology company ABB in a cartel damage case initiated by the Dutch network grid operator TenneT. TenneT claimed that it had incurred damages as a result of higher prices paid for ABB's cartelised gas-insulated switchgears. ABB successfully argued that any damage that TenneT might have suffered in the form of higher prices as a result of ABB's participation in the gas-insulated switchgears cartel was passed on by TenneT to its customers.
In 2008, the European Commission found that several undertakings, including ABB, had participated in a cartel in the gas-insulated switchgear market. The Commission's decision was not appealed by ABB, as it was granted full immunity from the fine imposed. Following the Commission's decision, TenneT brought a claim for damages amounting to € 29.7 million before a Dutch lower court which held ABB liable for the damages and granted TenneT standing in a separate judicial procedure for the calculation of the damages. The lower court ruled that the passing-on defence was not relevant, as the fact that TenneT might have passed on the overcharge to its customers had no bearing on the higher price paid by TenneT for the switchgears at the time of purchase.
On appeal ABB challenged the lower court's ruling, inter alia, on the ground that it had rejected ABB's passing-on defence. The Appeal Court held that damages should in principal be calculated at the time when they are incurred: in this case the moment when TenneT purchased the gas-insulated switchgears from ABB. However, in view of the case law of the Court of Justice of the European Union ("ECJ") and the recent EU legislative developments concerning the calculation of antitrust damages in such cases, the Appeal Court ruled that other circumstances at a later stage, such as passing-on, might be relevant for the calculation of the damages. The Appeal Court emphasised that in case of passing-on, the incurred injury has been diverted wholly or partially to another party who, according to the case law of the ECJ, is to be granted separate standing to seek compensation for the injury that has been passed on.
Consequently, the damages suffered by TenneT are to be determined by reference to the overcharge paid by TenneT minus the part of the damage that might have been passed on to the customers of TenneT. The Appeal Court rejected ABB's other grounds of appeal and thus confirmed the lower court's judgment subject to the corrected reasoning concerning ABB's passing-on defence.
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