On 8 July 2016, the Dutch Supreme Court ("the Court")
handed down a judgment upholding the availability of the passing-on
defense in private enforcement litigation. The ruling resulted from
a civil claim for damages brought by the electricity company TenneT
against the gas-insulated switchgear ("GIS") manufacturer
In 2007, the European Commission imposed a fine on ABB for its
participation in the GIS cartel. Following the Commission decision,
TenneT brought an action for damages and claimed that due to
ABB's participation in the cartel it had paid an overcharge on
a GIS installation purchased from ABB during its participation in
the cartel. ABB contended in response that TenneT had passed on the
overcharge to its customers.
The Court was asked to rule on the question whether the
passing-on defense under Dutch law is to be assessed in the context
of the determination of the extent of the damage or in the context
of the so-called doctrine of voordeelstoerekening.
Pursuant to this doctrine, the defendant can offset any benefit
conferred on the claimant against the damages that result from the
same tortious act. This benefit can only be offset, if there is a
sufficiently direct causal link between the tortious act and the
benefit and if offsetting the benefit is reasonable. TenneT argued
before the Court that the passing-on defense is to be assessed
under the doctrine of voordeelstoerekening, since it
followed from the Court's case law in this regard that the
strict requirement of a causal link between the wrongful act and
the benefit conferred on the claimant would narrow down the
possibility of a successful passing-on defense.
At the outset, the Court determined that although the present
case was not (yet) covered by the Antitrust Damages Directive and
the Dutch draft legislation for its implementation, it was
nevertheless desirable that Dutch law was interpreted in a way that
was compatible with this directive and draft legislation. According
to the Court, the passing-on defense can be assessed both in the
context of the determination of the extent of the damage and under
the doctrine of voordeelstoerekening, since, under both
approaches, it is to be determined whether the claimant is in the
same position as he would have been if the tortious act had not
taken place. Therefore, both approaches require the benefit
conferred on the claimant to be taken into account for the
determination of the extent of the damage, provided that it is
reasonable to do so. Furthermore, the burden of proving the
passing-on was held to be on the defendant under both
As to the strict causal link between the benefit conferred on
the claimant and the tortious act that the Court had established in
its previous case law regarding voordeelstoerekening, the
Court explicitly reversed its case law on this point. The Court
determined that this causal link is to be a conditio sine qua
non link in the sense that no benefit would have been
conferred in absence of the tortious act.
Consequently, the Court established that a judge that must rule
on a passing-on defence is, subject to the parties'
contentions, free to choose whether to address this defence under
the doctrine of voordeelstoerekening or in the context of
the determination of the extent of the damage, since the same legal
standard applies to both approaches.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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