On 8 October 2015, the Dutch Ministers of Justice and Economic Affairs published a legislative proposal for the implementation of the EU Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the "Directive") (see VBB on Competition Law Volume 2014, No. 11, available at www.vbb.com).
The proposal envisages the implementation of the Directive as part of the Dutch Civil Code ("DCC") and the Dutch Code of Civil Procedure ("DCCP"). The proposal essentially corresponds to the provisions of the Directive. In certain respects, however, transposition was not deemed necessary.
Concerning joint and several liability and full compensation, the joint and several liability for harm caused by joint behaviour of undertakings, the right to full compensation, including actual loss, loss of profit and interest, and the prohibition of overcompensation were considered to be already part of Dutch law. However, in line with the Directive, the proposal limits the liability of immunity applicants to harm caused to their own direct and indirect purchasers or providers.
As far as claims by direct and indirect purchasers are concerned, Dutch law was neither deemed to preclude claims by direct and indirect purchasers of a competition law infringer, nor to prevent claims in relation to injury suffered as a result of full or partial passing-on of the overcharge, since pursuant to Dutch tort law anyone who suffers injury as a result of an infringement of competition law is entitled to bring a claim for damages against the perpetrator of the injury. In this regard, the Ministers were of the view that Dutch law already foresees the means to avoid multiple liability or absence of liability due to actions for damages by claimants from different levels in the supply chain.
With respect to the disclosure of evidence, the current regime in the DCCP was considered to be in conformity with the Directive and to go even beyond the requirements of the Directive. As to the disclosure of evidence from the file of the competition authority, in line with the Directive, the proposal does not allow for the disclosure of leniency statements and settlement submissions and makes the disclosure of certain documents, such as replies to requests for information, conditional upon the closure of proceedings by the competition authority.
Notwithstanding the fact that the passing-on defence in relation to claims by indirect purchasers was recognised by the Arnhem-Leeuwarden Court of Appeal in September 2014 (see VBB on Competition Law Volume 2014, No. 10, available at www.vbb.com), the proposal includes a provision explicitly recognizing that defendants may invoke as a defence that the claimant passed on whole or part of the overcharge resulting from the infringement of competition law.
The proposal provides for mandatory implementation of the Directive by 26 December 2016 at the latest.
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