In context

Never fear, the national law implementing the Damages Directive is here

March 13, 2017
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In context

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.
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