Rotterdam District Court rules on follow-on damages claim in relation to Dutch bitumen cartel

It also found that the Dutch rules on evidence should be interpreted in accordance with the Damages Directive when the damages claim falls outside the scope of the Directive. It is therefore important to bear in mind that submitting details on news coverage of a cartel investigation may not suffice when arguing on the limitation period and that the Directive may have far-reaching consequences.

In September 2006, the Commission imposed fines on a number of bitumen suppliers, including Shell, Kuwait Petroleum and various construction companies, for their alleged participation in a price-fixing cartel in the bitumen market. The alleged cartel covered all bitumen used for road construction in the Netherlands from at least 1994 to 2002. Construction company Van Gelder claimed damages from Shell and Kuwait Petroleum, who supplied bitumen to it.

On 26 September 2018, the District Court of Rotterdam (the Court) ruled on the damages claim brought by Van Gelder in relation to the alleged bitumen cartel. The Court first ruled on relativity. According to the Court, being party to an agreement that restricts competition by object is in principle unlawful vis-à-vis all other market participants. Considering that at least one of the operating entities of Van Gelder was active in the relevant market, the Court concluded that the requirement of relativity had been fulfilled vis-à-vis this entity. The Court will decide on relativity in relation to the other operating entities and the shareholder at a later stage.

The Court then turned to the defence of statutory limitation. Referring to several press releases and newspaper articles, Shell argued that the relevant limitation period (article 3:310 (1) Dutch Civil Code) started to run no later than 22 October 2004. In the absence of a valid act of interruption or suspension, Van Gelder was out of time when it sent a claim letter on 5 September 2011. However, the Court sided with Van Gelder and held that it could not be inferred from the newspaper articles that (i) Kuwait Petroleum had participated in the cartel and (ii) the cartel had negatively influenced prices of non-cartelists. The Court concluded that the limitation period did not start to run until the date of the Commission's fining decision and therefore the claims were not time-barred.

With regard to applying the rules on evidence of the Damages Directive (the Directive), the Court first stated that the cartel took place between 1994 and 2002, which was outside the scope of the Directive (and its implementation). However, adhering to the principles of equivalence and effectiveness, the Court decided to interpret the applicable rules under Dutch law consistent with the Directive. This would, according to the Court, not lead to a contra legem interpretation of Dutch law. Consequently, the Court held that Van Gelder was presumed to have suffered damage unless Shell proves otherwise.

In conclusion, the Court held both Shell and Kuwait Petroleum  liable. The parties will now have a further debate on the amount of damage to be paid.

This article was published in the Competition Law Newsletter of November 2018. Other articles in this newsletter:

1. Franchise argument in laundry cartel does not wash with Dutch court
2. A problem shared is a problem halved: fine reduction and fine liability are correlated
3. ACM bound by its own rules during dawn raids
4. European Court of Justice clarifies the application of choice of forum clauses in competition damages claims