The Netherlands recently transposed the Damages Directive into
its national law. The Dutch implementing law has not led to
fundamental changes to the already existing antitrust damages
regime. In recent years, Dutch courts have been able to
pragmatically resolve many issues, often in line with the solutions
prescribed by the Damages Directive. However, the need to do this
will not completely disappear, as both the Directive and the
implementing law leave room for interpretation.
Although the Damages Directive and the implementing law intend
to remove certain obstacles to bringing damages claims, it is clear
that a decision of the European Commission establishing an
infringement does not guarantee a successful damages claim.
The Dutch law implementing the Damages Directive entered into
force on 10 February 2017 and only applies to cases where there is
a breach of EU competition law. The Dutch government is contemplating a bill to also apply these
provisions to civil damages actions in cases solely featuring
infringements of domestic competition law.
The implementing law largely follows the provisions of the
Damages Directive (see our previous
legal alert for more on the Damages Directive). The
implementing law provides for more extensive disclosure rules in
the Netherlands. However, in line with the Directive, leniency and
settlement regimes have been specifically excluded from disclosure
to safeguard the effectiveness of those regimes. For similar
reasons, the civil liability of successful immunity applicants has
been limited to claims by their direct and indirect customers. The
latter shows that the Directive does not improve the position of
damage claimants in all respects.
The Directive left room for interpretation, and the implementing
law fails to provide further clarification. For example:
In line with the Directive, the implementing legislation
provides for a rebuttable presumption that a cartel infringement
causes harm. But it does not explain what this means, or how
infringing companies should rebut this presumption.
The Directive does not make clear how the concept of separate
legal personality can be aligned with the EU competition law
concept of "one undertaking". The implementing
legislation is silent on this, which means that it is still unclear
whether parent companies are also liable in civil law actions for
conduct of their subsidiaries.
The transitory regime of the Directive distinguishes between
procedural rules, which have direct effect, and substantive rules,
which will only apply as of the date of implementation of the
Directive. However, for many rules it is unclear whether they
should be considered procedural or substantive. The expectation
that damage claimants will benefit from the Directive in the near
future may therefore not be fully justified if they claim damages
for a cartel that was no longer in existence when the implementing
legislation became effective.
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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The Damages Directive, which seeks to promote and harmonise the private enforcement of EU competition law before national courts across the European Union – and which was first published in December 2014 after more than ten years of debate – was due to be transposed into national law by each Member State by 27 December 2016
Turkey's Court of Cassation recently held that the Consumer Court is the appropriate forum for a lawsuit filed by a consumer against a bank, seeking compensation for damages arising from the bank's competition law violation.
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