Home > Legal articles > Never fear, the national law implementing the Damages Directive is here
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:
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