Finally, Dutch courts may ask the Commission to transmit relevant information or provide its opinion on questions concerning the application of EU competition law. Such defences are available for example, under Article 3 TFEU , but these are hardly ever invoked in civil proceedings relating to competition law. In cases where the Commission or the ACM has established an infringement of competition law in a definitive decision thereby rejecting the defence , there is no room to raise any such defence in a subsequent civil procedure relating to the same infringement.
Indirect purchasers have standing to claim damages. In the same vein, the passing-on defence is available. In order for such a defence to be successful, there needs to be a direct link between the overcharge paid by the purchasers and the costs that they pass on to their customers the indirect purchasers. If so, on what basis may they be joined?
Yes, Dutch law allows defendants to — voluntarily — join other parties as co-defendants to the proceedings Article DCCP. Pursuant to Article DCCP, a claim by a third party to join in the proceedings will only be awarded if the third party has an interest in the proceedings at hand. The criterion to determine what is considered to be such an interest is very broad and is already fulfilled when the third-party that wants to join in the proceedings may experience unfavourable consequences from the outcome of the proceedings.
In proceedings initiated after 26 December that fall within the scope of the Actions for Antitrust Damages Directive , two limitation periods apply: a subjective limitation period; and an objective limitation period. The subjective limitation period is five years and starts to run after the infringement ended and the victim became aware of: the infringement; the fact that the infringement caused harm to them; and the identity of the infringing undertakings the awareness of which is typically not assumed to exist until the Commission or ACM issues its decision.
The objective limitation period is 20 years and starts to run on the day after the infringement ended. Both limitation periods are effectively suspended from the start of an investigation by a competition authority into possible infringement until one year after the issuance by that authority of its final decision concluding the investigation.
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Mediation between claimant s and defendant s will suspend the limitation periods in a similar way. Apart from these automatic suspensions, claimants still have the possibility to interrupt stuiten the subjective limitation period pending an investigation by a competition authority or pending mediation. In that case, the subjective limitation period starts to run afresh.
This can be done through a simple interruption letter stuitingsbrief from the claimant s to the defendant s. The objective limitation period cannot be interrupted. In proceedings initiated before 26 December , the applicable limitation periods are slightly different. The subjective limitation period is five years, but starts to run when the victim becomes aware of the fact that it suffered damage and of the identity of the individual or legal entity liable for the damage.
This limitation period can be interrupted by a simple interruption letter. The objective limitation period is 20 years and starts to run on the day the damage was inflicted.
This limitation period cannot be interrupted. The limitation period of claims for the annulment of legal acts that infringe competition law is three years Article of the DCC. The limitation period of three years starts to run as from the date the claimant is entitled to invoke the annulment.
source Is it possible to expedite proceedings? The duration of the proceedings largely depends on the complexity of the case, the workload of the court and the litigation strategy of the parties involved. Typically, proceedings take at least one to two years per instance, but in some cases substantially longer.
See also the answer to question 1. The adverse cost orders usually cover only a small part of the actual costs that the successful party incurred as a result of the proceedings. However, the bill on Settlement of Damages in Collective Actions see question 1.
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If a court orders a collective claim settlement, the court may order the defendant to compensate reasonable and proportionate court costs and other costs that the claim vehicle has incurred. However, success fees are generally allowed, as long as the lawyer gets paid a certain fee regardless of the outcome of the case.
If so, has this option been used in many cases to date? Third-party funding is permitted and is often used in follow-on damages cases in the Netherlands. Judgments issued by a District Court rechtbank in first instance can be appealed to a Courts of Appeal gerechtshof , which will carry out a full review of issues of fact and issues of law. Judgments of a Court of Appeal can be appealed to the Supreme Court Hoge Raad , which will deal with issues of law only.
Additionally, the Supreme Court will assess whether the judgment of the Court of Appeal does not contain manifest errors of assessment. A manifest error of assessment may be found if the judgment ignores facts which have been put forward by the parties and which may have materially affected the operative part of the judgment. If so, is a a successful, and b an unsuccessful applicant for leniency given immunity from civil claims?
The ACM operates a leniency programme that is largely similar to that of the Commission.
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Leniency applicants do not enjoy immunity from civil damage claims. Undertakings that have received immunity from fines are only liable for damages suffered by their own direct or indirect purchasers. This is only different when claimants cannot obtain full compensation from the other cartel members, in which case they can claim damages from the immunity recipient. The legislation to implement the Directive on Antitrust Damages Actions entered into force on 28 January The main changes concerned: the introduction of a presumption of harm caused by competition law infringements; specific rules on joint and several liability of cartel participants; additional rules on disclosure of evidence; clarification of limitation periods and the binding nature of decisions of the ACM.
How has the Directive been applied by the courts in your jurisdiction?
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