Anwar et al v. Fairfield Greenwich Limited et al

Filing 1180

DECLARATION of Professor Dr. Marielle Koppenol-Laforce in Opposition re: #1160 Memorandum of Law in Opposition,. Document filed by Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Harel Investment and Financial Services Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Barrett, David)

Exhibit B

Netherlands

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Frederieke Leeflang
Boekel De Nerée

Legislation and jurisdiction
1

How would you summarise the development of private antitrust
litigation?

Private antitrust litigation in the Netherlands appears in different
forms. In the first place, parties can invoke the nullity of an agreement
(or part thereof) by pleading the nullity sanction of article 81(2) EC
or article 6(2) of the Dutch Competition Act (Competition Act) as a
defence in disputes concerning the execution of agreements. In addition, actions are aimed at obtaining interim relief against competition
law violations. These types of private actions have been common in
the Netherlands for several years.
Another form of private antitrust litigation is that aggrieved
parties commence legal pro­ceedings before the civil court to recover
damage sustained as a result of violations of article 81(2) EC or 6(2)
Competition Act, or article 24 Competition Act or 82 EC (abuse of a
dominant position). For example, if suppliers enter into a prohibited
price fixing agreement, the purchasers will sustain damage because
they will have to pay higher prices. In this respect, civil actions can be
brought after a competition authority has fined a company because
of an infringement of competition law (follow-on actions) or without
such prior fine (stand-alone actions).
Several actions for damages for infringements of article 81(2) EC
or article 6(2) Competition Act have been initiated. Recently, probably partly as a result of the European Commission’s policy, which is
aimed at stimulating private actions for compensation on the basis of
violations of competition law, these actions have increased. Because
most claims result in out-of-court settlements or arbitration proceedings, published judgments of these kinds of actions remain rare.
In 2009, elevator manufacturers that participated in the elevator
cartel came under attack with respect to private enforcement actions.
The Commission fined these elevator manufacturers approximately
e992 million for fixing prices and carving up markets. Thereafter,
more than 40 housing foundations are seeking private damages
from the elevator manufacturers for their participation in the elevator cartel. To combine the individual claims into one single action, a
foundation named ‘De Glazen Lift’ has been incorporated. In addition, Stichting Meldpunt Collectief Onrecht, a foundation that fights
against injustice caused by large undertakings, is encouraging victims
to join a collective action it intends to initiate against the members of
the elevator cartel. Further, the Commission itself has, strikingly, filed
cases seeking compensation for damages suffered due to this cartel
(although not in the Netherlands but in Belgium).
Members of the Dutch trade association for the hotel and catering
industry (Koninklijk Horeca Nederland) continued negotiating in 2009
with Dutch breweries Heineken, Grolsch and Bavaria. The Commission fined these breweries nearly e274 million for participating in an
illegal cartel that primarily involved price fixing and customer allocation. The members of the Dutch trade association for the hotel and
catering industry suffered massive losses due to this cartel. This association filed for example petitions to hear witnesses under oath.

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New developments came up with respect to the collective agreement that was concluded between the coordinating body of the
Dutch retail sector (Platform Detailhandel) and eight Dutch banks
that had eliminated competition on the market of PIN (national debit
card) transactions by setting up Interpay as a central sales office.
In addition, Interpay had abused its dominant position by charging
excessive rates for the provision of network services for PIN transactions. This settlement contains a discount of 0.01 eurocent per PIN
transaction and the establishment of a fund to achieve more effective
payment services. In 2009, an additional agreement was concluded to
this settlement due to the forthcoming introduction of SEPA (Single
European Payments Area).
2

Are private antitrust actions mandated by statute? If not, on what
basis are they possible?

There are no special procedural rules with respect to an action brought
for an infringement of national or European competition law.
Agreements that violate the cartel prohibitions of article 6(1)
Competition Act or article 81(1) EC are null and void on the basis of
article 6(2) Competition Act or article 81(2) EC (see also question 1).
In addition, article 3:40(2) of the Dutch Civil Code (DCC) declares
void legal acts contrary to mandatory rules.
A claim for damages in the case of infringement of antitrust rules
can be based on tort (article 6:162 DCC) or unjust enrichment (article
6:212 DCC). In cartel cases, article 6:166 DCC (group liability) is
relevant as well.
The basic rules governing tort (unlawful acts) under Dutch law
are set out in article 6:162 DCC. The basic conditions for liability
are: an unlawful act, attribution of the unlawful act to the wrongdoer,
damages and causality between the unlawful act and the damages. A
fifth condition is the relativity requirement. The damage suffered by
the claimant must be of the type envisaged by the standard or norm
the (unwritten) law intended to protect (article 6:163 DCC).
A breach of the EC or Dutch competition rules is considered to be
an unlawful act as it constitutes an infringement of a duty imposed by
law. The violation of competition rules can in general be contributed
to the infringer. It is more difficult to prove the (amount of) damages
incurred. A court may judge on the liability and refer the calculation of damages to a separate procedure. However, civil proceedings
already have a long duration in the Netherlands and such an additional procedure can delay the outcome of the case extensively.
Article 6:212 DCC states that a person who has been unjustly
enriched at the expense of another must, to a reasonable extent,
repair the damage up to the amount of such enrichment. The four
conditions necessary to establish unjust enrichment are therefore:
enrichment, damage, causality between the enrichment and the damage, and the enrichment is not justified by a legal act or statutory
provision.
Further, article 6:166(1) DCC states that if one out of a group
of persons unlawfully causes damage and the risk of thus causing

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damage should have restrained such persons from their collective
conduct, all members of the group shall be jointly and severally liable
if they can be held accountable for such conduct.

6

Can private actions be brought against both corporations and
individuals, including those from other jurisdictions?

Private enforcement of competition law is not based on statute in the
Netherlands. All courts of first instance in the Netherlands can hear
civil law claims. There is no special court or tribunal designated to
hear private antitrust matters.
However, a request for the court approval of a collective settlement agreement as described in articles 7:907-910 and 1013-1018
DCC can only be submitted to the Amsterdam Court of Appeal.

The competition rules are addressed to undertakings, namely ‘any
entity engaged in an economic activity, regardless of the legal status
of the entity and the way in which it is financed’ (Case C-41/90
Klaus Höfner). An economic activity is any activity consisting in
offering goods or services on a given market. It is irrelevant whether
it concerns a private or public entity. The concept of undertaking also
encompasses individuals that engage in an economic activity.
Therefore, private actions can be brought against corporations
and – under certain circumstances – against individuals. Procedures
against foreign corporations or individuals can be initiated in the
Netherlands provided the (international) rules on jurisdiction are
observed.

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3

If based on statute, what is the relevant legislation and which are the
relevant courts and tribunals?

In what types of antitrust matters are private actions available?

For all types of antitrust matters – cartel cases as well as cases relating
to the abuse of a dominant position – private enforcement actions
are available. As stated above, private enforcement in cartel cases
often relates to the annulment of contractual obligations on competition law grounds. In addition, occasionally interlocutory proceedings
related to a refusal to supply (which under certain circumstances can
be qualified as an abuse of a dominant position) are initiated. For
example, in August 2009 Handelsmaatschappij BV, an undertaking that rents out containers for flowers and plants, initiated interlocutory proceedings against Container Centrale Benelux BV, which
exploits a pool to exchange such containers. Handelsmaatschappij
BV argued that Container Centrale Benelux BV abused its dominant
position by imposing unfair prices to allow access to this pool and
that such access is necessary to enter the market. However, the judge
considered that the claimant insufficiently substantiated that it was
impossible to enter the market by other means.
5

What nexus with the jurisdiction is required to found a private action?

District courts have jurisdiction to hear disputes that are of a civil
law nature, including cases involving claims based on competition
law infringements, for example nullity actions based on article 6
Competition Act or article 81 EC.
With respect to damage claims of more than e5,000, the civil
court is competent, in other cases the sub-district court. A legislative
proposal is pending in the Dutch parliament to increase this amount
to e25,000.
There are 19 civil courts in the Netherlands, each with its own
district. The different courts apply the same law. Civil actions have
to be filed before the district court that has jurisdiction over actions
against the defendant.
In cases with an international dimension, the rules laid down in
Regulation 44/2001 (Brussels I) apply if the defendant has its seat or
domicile in the EU. If the defendant is not established within the EU,
the jurisdiction rules laid down in the Dutch Code of Civil Procedure
are applicable. In general, a Dutch court has jurisdiction when (one
of) the defendants has its seat or is domiciled in the Netherlands or,
in cases based on tort, if the harmful event occurred in the Netherlands. The applicable law to matters based on tort is decided on the
basis of Regulation 864/2007 (Rome II), which is, in general, the
law of the country where the market is affected by the restriction of
competition. In contractual matters, the EC Convention on the law
applicable to contractual obligations is relevant.
Please note that, if the Dutch court has jurisdiction according to
the above-mentioned rules, a foreign entity could be summoned in
the Netherlands.

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If the country is divided into multiple jurisdictions, can private actions
be brought simultaneously in respect of the same matter in more than
one jurisdiction?

It is possible to bring simultaneous actions with respect of the same
matter before the different district courts that have been mentioned
in question 5. However, the case law of the Supreme Court of the
Netherlands guarantees a similar application and interpretation of
the provisions of the DCC throughout the country. A defendant is
entitled to request a transfer of the case to the court where the same
matter is already pending. In practice, simultaneous actions will
only result in a longer duration of the proceedings (if the defendant
requests a referral) or in the possibility of conflicting judgments in
first instance.
Private action procedure
8

May litigation be funded by third parties? Are contingency fees
available?

Litigation may be funded by third parties. However, third parties that
fund group claims in the Netherlands (almost) never occur. Insurance
is sometimes available to cover legal costs.
A member of the Dutch Bar is not allowed to agree a ‘no-cure,
no-pay’ arrangement (a contingency fee arrangement) with a client
or that his or her fee will be proportionate to the results achieved
thanks to his or her assistance, unless such member so does with due
observance of the usual and accepted collection rate of Bar members
(article 2 By-law on the exercise of a legal practice (contingency fees
section)). However, the Dutch Bar allows its members to combine
their hourly rate with a success fee, provided it does not amount to
a disguised ‘no-cure, no-pay’ arrangement.
9

Are jury trials available?

Jury trials are not available.
10 What pre-trial discovery procedures are available?

Before a procedure on the merits is initiated, a party may request a
preliminary hearing of witnesses. A (potential) claimant must indicate the nature and amount of its claim, the witnesses it wishes to
examine, the subject (facts) on which it intend to hear the witnesses
and, if known, the identity of the party to which the claim may
be addressed. It is within the court’s discretion to allow a preliminary hearing of witnesses. A request is generally allowed. One is not
obliged to initiate proceedings on the merits after an examination
of witnesses.
Further, article 843a of the Dutch Code of Civil Proceedings
(DCCP) allows pre-trial discovery of documents. A claimant that
has a legitimate interest can request inspection, copies or extracts of
documents related to a legal relationship to which it is a party. The

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claimant has to identify the documents with a reasonable degree of
precision. A request under article 843a DCCP can be filed in separate
proceedings before a district court or brought as a separate request in
any pending proceedings.
11 What evidence is admissible?

There are no limitations to the form of evidence (article 152(1)
DCCP). However, the valuation of evidence is left to the judge. The
value of statements by national competition authorities, other courts
or authorities are also left to the discretion of the court. In practice,
such statements have certain value, but defendants can rebut facts as
set out in a decision of a competition authority. According to article
16 of Regulation 1/2003, Dutch courts are not allowed to take decisions running counter to an adopted decision of the European Commission. Expert evidence and cross-examination of parties, witnesses
and experts are admissible.
12 What evidence is protected by legal privilege?

Members of the Dutch Bar have legal privilege of non-disclosure in
proceedings. In this respect, legal advice given to clients will benefit
from legal privilege before courts or the Dutch Competition Authority. In addition, correspondence between a lawyer and a client is
covered by the pledge of secrecy. This guarantees the full exercise of
the right of defence, and specifically, to safeguard the requirement
that any person must be able to consult his or her solicitor without
fear that any information given in confidence might subsequently be
disclosed.
The European Court of First Instance stated a few years ago in
its Akzo Nobel decision (Joined Cases T-125/03 and T-253/03) with
respect to the issue of legal professional privilege in the context of
EU competition law that communications with in-house counsel are
excluded from protection under privilege rules.
Communication between in-house counsel and, for example, the
board of directors of the company they work for, may have to be
disclosed in civil proceedings. However, since 1997 in-house lawyers
have been able to be members of the bar. In-house lawyers that are
admitted to the bar have the same right of legal privilege as (external)
counsel.
13 Are private actions available where there has been a criminal
conviction in respect of the same matter?

In the Netherlands, the authorities are not allowed to combine criminal and civil persecution in relation to the same matter (the ‘una via’
rule). The Competition Act is an administrative act. In the event that
the Dutch Competition Authority imposes a fine on the basis of the
Competition Act, criminal proceedings related to the same matter are
not allowed. In addition, actions that will normally lead to criminal
convictions but are part of the workings of the cartel (such as fraud)
will normally be penalised in the Netherlands by the Dutch Competition Authority.
In this respect, criminal conviction and private actions related to
competition law violations in respect of the same matter do not occur
since the Dutch Competition authority shall penalise the cartel. After
the Dutch Competition Authority imposes the fine, follow-on private
action could be initiated (see question 1).
14 Can the evidence or findings in criminal proceedings be relied on by
plaintiffs in parallel private actions? Are leniency applicants protected
from follow-on litigation?

A violation of Dutch competition law is not prosecuted as a criminal
offence. A decision of a court in a criminal matter (although not
related to the same matter as the relevant competition law violation)
can be used as evidence in a private enforcement action. Such judge-

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ments have evidential value since they provide compelling evidence
that the convicted person has committed the actions in the judgment
(article 161 DCCP). However, the convicted person may rebut these
facts by providing contradictory evidence.
Leniency applications do not affect civil proceedings. In this
respect, successful or unsuccessful leniency applicants are not protected from follow-on litigation.
15 What is the applicable standard of proof for claimants and
defendants?

In general, the burden of proof rests with the plaintiff, who has to
state the facts that constitute the infringement (article 150 DCCP). In
this respect, claimants must, to succeed in obtaining damages, provide convincing evidence of an unlawful act (breach of competition
law), attributability to the defendant, relativity (the rule breached
must serve to protect against damage such as that suffered by claimant) the existence of damage and the causal link between the unlawful
act and the damage occurred.
The defendant has the burden of proof of the facts that support
the specific defences – such as a passing-on defence.
The court may order a party to disclose information that the
other party needs to discharge its burden of proof. The court may
reverse the burden of proof if the defendant refuses to produce these
documents.
In interlocutory proceedings, the judge has the discretion to shift
or reverse the burden of proof in a manner he feels is appropriate
for the case.
16 What is the typical timetable for collective and single party
proceedings? Is it possible to accelerate proceedings?

The usual minimum time limits for summoning the opposing party
and for calling any third parties and witnesses is at least one week
(articles 114-119 DCCP). Time limits for the performance of procedural acts by parties and for the court’s rulings vary in general
between two and six weeks. An extension for performing procedural acts may be granted by the court under certain conditions.
The general time limit of three months applies to appeals on a point
of fact (articles 339 DCCP) and appeals on a point of law (articles
402 DCCP).
The duration of civil proceedings depends on the circumstances
of the case and is difficult to predict. Civil proceedings may easily last
more than one year. However, interlocutory proceedings generally
take no more than a few weeks from the issuing of the writ of summons to the judgment, dependent on the urgency of the matter.
17 What are the relevant limitation periods?

A damage claim has to be initiated within five years from the day the
claimant becomes aware of the damage and of the identity of the person responsible for the damage. In any event, damage claims become
unenforceable 20 years after the event that caused the damage. With
respect to an action seeking avoidance of a contract, the statutory
period of limitation is three years. A running limitation period can
may be suspended or interrupted, after which a new period may
begin to run.
18 What appeals are available? Is appeal available on the facts or on the
law?

Appeals are available to the courts of appeal. There are five courts of
appeal that have jurisdiction to hear appeals against the judgments of
the district courts within its district. On points of law only, a second
appeal may be brought before the Supreme Court.

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Collective actions
19 Are collective proceedings available in respect of antitrust claims?

In the Netherlands, non-profit organisations – associations or foundations – representing the interests of injured parties can bring collective actions in their own names. The articles of association of
these associations or foundations must state that they represent the
interests of the injured parties. Another requirement is that the interests concerned can be joined. The foundation or association must
state and, if necessary, prove that the interests of the group members
are sufficiently similar to warrant a collective action. A representing organisation can in principle pursue any causes of action and
forms of relief except an action for damages (article 3:305a DCC).
For example, an association or foundation can seek a judicial declaration that the defendant is liable for the damage it has caused.
The Dutch Consumers Association sharply criticises the exclusion to
claim for monetary compensation collectively in article 3:305a DCC
and stated that this is the most important block in access to justice
for a collective damages claim.
Further, the individuals can assign their claims to an organisation (association or foundation). This association or foundation can
claim damages as holder of the individual claims, in its own name
on behalf of the victims.
The injured parties may also grant a power of attorney to a party
to represent them during legal proceedings. This party would then
bring a legal action against the party being sued in the name of those
that had issued the power of attorney.
Claimants can also jointly bring a legal action in their own name
against the party being sued. This means that all victims are a party
in the legal proceedings.
Finally, the Dutch Class Action (Financial Settlement) Act 2005
(WCAM: laid down in articles 7:907-910 and 1013-1018 DCC) enables the possibility for binding collective settlements of mass disputes
(see question 20).
20 Are collective proceedings mandated by legislation?

The right to institute a collective action is regulated in articles 3:305a
to 3:305c DCC. Foundations and associations can initiate collective
proceedings (see question 19). Article 3:305b DCC extends this right
to public legal entities and article 3:305c DCC to certain foreign legal
entities and authorities protecting consumer interests. Civil claims
may be brought in relation to all areas of law.
Further, WCAM (see question 19) facilitates the collective settlement of mass damages. This is the first act in Europe that enables a binding collective settlement of mass disputes. If a settlement
agreement has been concluded between a foundation or association
and one or more other parties that have committed themselves by
this agreement to pay compensation for the damage, the Amsterdam
Court of Appeal may, at the joint request of the parties, declare this
settlement binding on persons to whom the damage was caused.
However, a person entitled to compensation can notify in writing,
within a certain period, that he or she does not wish to be bound
to the agreement. In that case, the declaration that the agreement is
binding shall have no consequences for such person (opt-out).
This act has in practice been applied in various fields since its
introduction, for example for damages caused by failure to warn
about the risks of certain investment products (Dexia case concerning a collective settlement of e1 billion), for damages of life insurance
policy holders because of the bankruptcy of an insurance company
(Vie d’Or case concerning a e45 million settlement) or for personal
injury caused by a unsafe drug (DES case concerning a e35 million
settlement). In May 2009, the Amsterdam Court of Appeal rendered
an important decision with respect to an international collective settlement that compensates investors who suffered losses because of a
sudden decrease in the value of Shell securities following disclosure

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of allegedly incorrect prior reporting by the company of its proven
oil and gas reserves. The court ruled that WCAM concerns civil
and commercial matters as referred to in article 1 of the Brussels I
Regulation and the Lugano Convention and, on this basis, the court
assumed for the first time jurisdiction with respect to the shareholders domiciled outside in the Netherlands. In July 2009, the Court of
Appeal declared binding a global collective settlement in the Vedior
case related to damage suffered by investors who sold their Vedior
stock when rumours were spreading that Vedior was about to be
acquired.
21 If collective proceedings are allowed, is there a certification process?
What is the test?

Pursuant to article 3:305a DCC, class certification is not part of the
proceedings.
22 Have courts certified collective proceedings in antitrust matters?

Not applicable (see question 21).
23 Are ‘indirect claims’ permissible in collective and single party
proceedings?

The general view is that indirect claims are permissible. However,
the claimant must provide evidence of the damage and causal link
between the violation and the damage (see also question 15).
24 Can plaintiffs opt out or opt in?

The foundation or association that is allowed to initiate collective
proceedings according to articles 3:305a to 3:305c DCC defines the
group represented. The group members are bound by the rendered
judgment. However, pursuant to article 3:305a sub 5 DCC, individual members retain the right to opt out (unless that would not be
possible in light of the nature of the judgment).
With respect to settlements that have been declared binding (see
question 20) article 7:908(2) DCC provides for an opt-out possibility.
This article states that an affected individual can opt out (in writing)
within three months after the court has declared the settlement binding. For example, in the above-mentioned DES case, the estimation
is that only a few claimants opted out and around 6,000 DES users
filed requests for a payment.
25 Do collective settlements require judicial authorisation?

Under the Dutch Class Action Financial Settlement Act 2005 a
request to declare a collective settlement binding must be submitted
to the Court of Appeals in Amsterdam (see also question 20). The
court declares the settlement binding if certain procedural requirements and criteria with respect to content have been met (article
7:907 DCC and 1013 DCCP). For example, the agreement must
include – inter alia – the most accurate possible indication of the
number of persons belonging to the group or groups and the conditions that these persons must meet to qualify for the compensation.
26 If the country is divided into multiple jurisdictions, is a national
collective proceeding possible?

Not applicable.
27 Has a plaintiffs’ collective-proceeding bar developed?

No.

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Update and trends
As stated in question 5, a legislative proposal is pending in the Dutch
parliament to increase the values of claims that may be heard by the
sub-district courts from e5,000 to e25,000 so that more cases can
be handled by these courts.
The Dutch government has responded to the Green Paper
on Consumer Collective Redress. The response revealed that the
Dutch government considers the Dutch Collective Settlement Act
a useful instrument and wants to focus on improving this act so
that it can be used to settle more mass claims. In this respect, a

Remedies
28 What forms of compensation are available and on what basis are they
allowed?

Damages are generally awarded to place the claimant in the position
he or she would have been had the infringement not taken place.
This actual damage is calculated by the theoretical comparison of the
financial situation with and without the infringement. Compensation
could consist of loss of profit, incurred losses, or, exceptionally, loss
of opportunities.
However, the judge has the discretion to limit the amount of
damages. In addition, the judge can decide upon the request of the
claimant to assess the damages on the basis of the profit made by the
defendant, if this reflects a more just outcome.
29 What other forms of remedy are available?

Besides damages, a breach of European or Dutch competition law
can lead to demands for restitution, injunctions (prohibiting the
continuation of the unlawful conduct) and declaratory judgments
(declaring that an unlawful agreement is null and void). Preliminary
injunction can be requested in interlocutory proceedings.
30 Are punitive or exemplary damages available?

Punitive or exemplary damages are not available.
31 Is there provision for interest on damages awards?

In the event of tort, interest is awarded from the date the damages
were incurred (article 6:83(b) and 6:119 DCC). Compound interest is
included. Each year after the damages occurred interest is added to the
amount on which the legal interest calculation is based. In the event of
tort, the level of interest is determined by the government by royal decree
and regularly adjusted to market circumstances (article 6:120 DCC).
With respect to the non-fulfilment of commercial contracts, the
level of interest is determined by the refinancing interest rate applied
by the European Central Bank, plus 7 percentage points. This interest
is adjusted each half-year.

number of amendments have been proposed. The most important is
the introduction of the option for the court to request a preliminary
hearing from the Supreme Court. This opens the possibility to gain
clarity on key issues faster (legal or otherwise).
Further, the government is planning a study into options for
redress in the event of scattered damage (mass damage that is
fragmented or relatively low-value damage) because the Dutch
government is of the opinion that Dutch mechanisms for collective
redress pay little attention to these damages.

Costs vary with the size and type of case. In most cases, the fixed
costs are substantially lower than the actual legal costs. Therefore, a
successful party will normally not be fully remunerated.
34 Is liability imposed on a joint and several basis?

Members of a cartel that have acted jointly are jointly and severally
liable for the entire damage (article 6:102(1) DCC). Further, article
6:166(1) DCC states that, if one out of a group of persons unlawfully causes damage and the risk of thus causing damage should have
restrained such persons from their collective conduct, all members
of the group shall be jointly and severally liable if they can be held
accountable for such conduct. The claimant has the possibility to
invoke this article to sue any of the participants to, for example, a
cartel, on the basis of several liability. This means that – if the requirements of group liability have been met – the claimant could also sue
an undertaking from which it has not purchased anything, but which
might be more solvent than its own supplier.
35 Is there a possibility for contribution and indemnity among
defendants?

In general, each defendant has to contribute to the damage in proportion that it has contributed to the circumstances that caused the
damage, unless equity due to certain circumstances requires different
(article 6:101 DCC).
In addition, all members of the group jointly and severally liable
according to article 6:166(1) DCC are each liable for an equal part
of the damages, unless equity requires different due to certain circumstances (article 6:166(2) DCC).
36 Is the ‘passing-on’ defence allowed?

No, fines imposed by the European Commission or the Dutch Competition Authority are not taken into account when settling damages
in a private antitrust case.

Dutch law does not provide explicitly for the passing-on defence.
However, a judge has the discretion to take this defence into account
with respect to the assessment (mitigation) of the level of damages
or to order the payment of unlawfully obtained profits instead of
compensation of damages actually suffered. At this moment, there is
no authoritative case law on the availability of the passing on defence.
Presumably, this defence is possible since Dutch tort law is based on
the compensatory principle. In view of this principle, it seems that
a claimant cannot recover overcharges that have been passed on to
its downstream customers. In this respect, the Dutch government
stated in its response to the European Commission’s 2008 White
Paper on Damages Actions that the passing-on defence is available
in the Netherlands.

33 Who bears the legal costs? Can legal costs be recovered, and if so, on
what basis?

37 Do any other defences exist that permit companies or individuals to
defend themselves against competition law liability?

The court decides who bears the legal costs. In general, these costs
have to be paid by the party against which the court ruled. The court
determines the amount of the legal costs to be paid.

In accordance with EC competition law, the public interest defence or
the state compulsion doctrine is available in the Netherlands. Undertakings do not infringe Dutch competition law if their conduct is

32 Are the fines imposed by competition authorities taken into account
when settling damages?

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justified on the basis of the public law framework or they are under an
obligation to comply with the instructions of the public authority.
38 Is alternative dispute resolution available?

Alternative dispute resolutions in the Netherlands are arbitration,
binding advice (binding third-party ruling), mediation and settlement.
The results of these alternatives remain outside the public domain.
Settlements and arbitration are commonly used in competition law
cases, so in this respect they are successful.

Arbitration is governed by the sections 1020-1076 DCCP and
the international Treaty of New York. Parties are prevented from
civil proceedings and obliged to arbitration if they have agreed to
arbitration by clause in a contact. In this case, the civil court declares
itself incompetent.
A few years ago, referral facilities to mediation were introduced
at all courts. Parties can only participate on a voluntary basis. Mediation clauses in contracts do not break the competence of the court to
deal with the case.

Frederieke Leeflang

[e-mail]

PO Box 75510
1070 AM Amsterdam
The Netherlands

Tel: [phone]
Fax: [phone]
www.boekeldeneree.com

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