Today the Dutch Supreme Court ruled in TenneT/ABB on the
application of the passing-on defence in cartel damage cases. The
case is relevant for both claimants and defendants in cartel damage
cases because the Supreme Court explained the criteria for the
passing-on defence under Dutch law.
The passing-on defence in cartel damage cases means that the party
that is held liable for the cartel damage argues that the claimant
has suffered no or less damage because the claimant passed on the
price overcharge in whole or in part in the price of its products
The Supreme Court had to answer the question whether the passing-on
defence is a defence that disputes the amount of the damage or
whether it must be characterised as a deduction of collateral
benefits from the amount of the damage. In the latter case, it must
be established that there is a causal link between the harmful
event and the benefits and that deduction of the benefits is
reasonable. The Supreme Court held that a court may choose between
these approaches. According to the Supreme Court, the requirements
are on balance the same in both approaches, especially that in both
approaches the deduction must be reasonable. The decision of the
court of appeals did not clarify whether a reasonableness test
should be applied.
Also, the Supreme Court held that the burden of proof that part or
all of the price overcharge has been passed on is with the liable
party. With this judgment, the Supreme Court anticipates the
implementation of the Cartel Damage Directive (2014/104/EU). The
Dutch bill implementing the Cartel Damage Directive (34 490) would
have to enter into force by 26 December 2016 at the latest.
For the entire text of the decision of the Supreme Court in Dutch
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guide to the subject matter. Specialist advice should be sought
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Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws –negligence, competitive harm, and direct causal link– have been met.
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