Most Read Contributor in Netherlands, January 2017
The District Court of The Hague recently clarified that a
claimant in a cartel damages action does not have to disclose a
settlement agreement with a defendant to the co-defendants. But
given that all cartel members are jointly and severally liable for
the harm caused by the cartel, the claimant should reduce its
damages claim by the settling defendant's internal contribution
share in the overall damage. If the settlement amount significantly
exceeds that share, the claim will need to be reduced by the actual
settlement amount to avoid overcompensation. The ruling clarifies
the court's approach to contribution claims. It safeguards
claimants from having to disclose their settlement agreements
prematurely, while protecting cartel members from having to pay
more than they are liable for.
In October 2008, the European Commission imposed fines of EUR
676 million in total on several paraffin wax producers for
participating in a cartel. Following the Commission's cartel decision, litigation vehicle CDC filed a
damages claim with the District Court of The Hague against a number
of these paraffin wax producers. In June 2015, CDC reached a
settlement with Sasol, one of the paraffin wax producers, and
subsequently reduced its claim by Sasol's share in the overall
alleged damage. CDC left the precise determination of this share to
the district court. The defendants argued that CDC should disclose
the exact settlement amount agreed with Sasol to ascertain whether
CDC had not already been fully compensated for the damages claimed
as a result of the settlement. In addition, all the cartel members
addressed in the European Commission's decision should be
brought into the main proceedings to determine Sasol's internal
The district court found that CDC's claim reduction was not
related to the settlement amount actually paid by Sasol, but
referred to Sasol's share in the harm in light of the internal
allocation of liability for the harm among all the cartel members.
As a result, it was only necessary to determine Sasol's share
without having to establish the other cartel members' internal
contribution shares. Furthermore, the district court ruled that CDC
does not have to disclose the exact settlement at the moment,
because nothing indicates that the settlement amount paid exceeds
Sasol's internal contribution share. Disclosure may, however,
be necessary at a later stage.
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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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