Dutch court: insufficient substantiation? No follow-on cartel damages action

Referring to case law such as CDC v. Akzo Nobel et al. and Courage v. Crehan et al. the Court started by pointing out that civil liability for antitrust violations is established by national law, rather than European law. Furthermore, the Court reasoned that the bundling of claims does not take away their individual character. Therefore, these claims should be considered individually. The Court held that claimants should have provided sufficient facts to determine whether or not a purchaser, lessee and/or user was affected by the cartel to allow the Court to determine whether or not the possibility of harm is plausible. More precisely, the Court stated that claimants should have substantiated per individual claimant:

• that and which trucks were obtained in the relevant period;
• when, how and from whom Claimants purchased, rented, leased and/or used these trucks;
• (if applicable) how and when the rental period, lease period, ownership and/or use of these trucks ended.

The Court noted that – absent this information - the defendants could simply contest the allegations made by the claimants. That would make the proceedings ineffective, since the Court would then have no choice but to reject the claims. The Court therefore provided claimants with the opportunity to provide the necessary factual information in a written submission on 18 September 2019. The Court ruled that it is up to the claimants to determine which facts and documents are necessary to sufficiently substantiate their claims. However, the Court also noted that if it is later established that the claimants did not provide sufficient facts, their claims may be dismissed. In respect of the assignments of claims, the Court decided that claimants must provide assignment documentation to substantiate that claims were in fact assigned to them. The Court did not decide when CDC's motion for disclosure of the European Commission's statement of objections will be debated. The Court indicated that it will decide this issue later as part of the debate on the merits of the claims. In its judgement, the Court also decided to formally join all pending Dutch trucks cartel follow-on proceedings (currently over ten) before the Amsterdam District Court. The Court's judgment bears a striking resemblance to the recent (and final) judgment of the Court of Appeal of Arnhem-Leeuwarden in the elevator cartel case (see our Newsletter on this judgment). In fact, the Court made an explicit reference to the Court of Appeal's judgment in that case. The Court of Appeal held that the claimant (East West Debt B.V.) had failed to provide concrete information showing which parties were affected by the cartel. The claimant had also failed to adequately demonstrate which party had purchased which specific products, which manufacturers had provided those products, and how much had been paid in those transactions. As a result, the Court of Appeal rejected all claims. Together, these judgments confirm that Dutch courts, while generally being open to cross-border follow-on actions, require that claimants (including claims vehicles) are well-prepared when they decide to initiate a follow-on action. Claimants' writs of summons must include sufficient information regarding the harm suffered by claimants as a result of a cartel.