News Update Competition Litigation

9 April 2021

A bill was recently submitted to the Dutch House of Representatives which allows that actions for damages that are exclusively based on an established or alleged national competition law infringement can also be assessed according to the 'Act implementing the Directive on Private Enforcement of Competition Law'.

The provisions of the Implementation Act currently only apply if a damages action is partially or fully based on an established or alleged EU competition law infringement (Article 101 and/or 102 TFEU). They do not apply when the damages action is only based on an established or alleged national competition law infringement (Article 6 and/or 24 of the Dutch Competition Act). The Dutch Competition Act, however, uses the same material standards and terms as EU competition law. According to the lawmakers, it seems obvious that the same specific rules should apply to actions for damages, irrespective of whether they are based on a purely national competition law infringement or partially or fully on an EU competition law infringement. This means that the specific rules of the Implementation Act on, among other things, limitation periods, liability, compensation and evidence, as laid down in the Articles 6:193k-6:193t of the Dutch Civil Code and 44a(3), 161a and 844-850 of the Dutch Code of Civil Procedure, will also apply to purely national cases.

The Court of Justice of the EU ("CJEU") interprets the provisions of the Damages Directive (2014/104/EU) that have been transposed in the Implementation Act. If the Bill is adopted, the CJEU's interpretation will also be leading if any allegedly suffered cartel damage is claimed based on an established or allegedly purely national competition law infringement.

By way of transitional law, it is proposed that the specific provisions of procedural law of the Implementation Act regarding evidence and the possibility of a temporary stay of the proceedings during extrajudicial dispute resolution in connection with the action for damages in question will only apply to cases that have been brought before the civil court after the Bill has entered into force.

This proposal is part of the broader Bill 35770 which also proposes amending the Dutch Competition Act to explicitly exclude the cartel prohibition from conduct as part of the common agricultural and fisheries policy as well as technical changes of merger control.