Home Kennis Chronicle civil case law competition law 2023

Chronicle civil case law competition law 2023

In this chronicle, we discuss competition law rulings by Dutch civil courts from 2023. It was another busy year in the follow-on field. Our prediction last year was that we would be facing interesting follow-on years, especially given the European Commission's increased focus on non-common cartels, such as purchasing cartels. In doing so, we predicted that 2023 could well see the first references to follow on proceedings on the quantification of damages.

(For now) nothing of the sort: the year 2023 was instead marked by a critical approach by Dutch judges to the law of jurisdiction. Although this is an area traditionally reserved for specialists in private international law, this year the readers of this chronicle will not escape a brief crash course in which the crevices of jurisdiction law will be reviewed . Whereas in the past it was sometimes suggested that the courts in the Netherlands would very easily and generously assume jurisdiction, there is now clearly a critical attitude, in which the courts do not shy away from turning to Luxembourg in case of doubt. Preliminary questions have been submitted to the Court of Justice in three cases. This also means that we can possibly expect the necessary guiding rulings from Luxembourg in the coming year, which we hope to report on in the next chronicle.

Several rulings focused on a number of so-called "special grounds of jurisdiction”. These are grounds of jurisdiction that designate a court other than the court of the defendant's domicile, which has jurisdiction according to the main rule.[For example, the anchor defendant rule: under certain conditions, several foreign defendants can be sued in the court of the domicile of one of the defendants. In addition, there is the "harmful event" rule: the case can also be brought before the court of the place where the harmful act took place or the direct damage occurred. The question of how these special grounds of jurisdiction should be applied in certain circumstances led to headaches for the district courts, the courts of appeal and the Supreme Court. There is a special challenge here: the court must take into account all the information at its disposal when assessing its jurisdiction, including the defendant's disputes,  however, there is no place for an extensive evidentiary procedure: according to established case law of the Court of Justice (Kolassa and Universal Music), it is a question of a prima facie assessment. In this chronicle, we discuss how this balance has been handled in various decisions.

Another highlight of the period of this chronicle concerns the referral decision of the District Court of Amsterdam in which the District Court asked preliminary questions to the Supreme Court about the applicable law to the claims in the Trucks case. Just last year we reported on a judgment of the District Court of Amsterdam - also in Trucks - in which the court ruled rather briefly that Dutch law applies to all claims. We discussed then that the reasoning used for this was vulnerable and surprising, considering inter alia the AirCargo decisions. However, because litigation at the District Court of Amsterdam is conducted in several batches, the District Court of Amsterdam took the opportunity to once again question whether this was the correct approach. Because the court started doubting its previous decision, the court asked preliminary questions to the Supreme Court.

Then some numbers. In 2023, we counted 22 judgments(eleven follow-on and eleven standalone). By comparison, in 2022 we counted nineteen judgments (seven follow-on and twelve standalone).

At the European level, proceedings in the major cartel damages cases unabatedly continued, of course. In particular, we highlight the Court of Justice rulings in Tráficos Manuel Ferrer and Repsol.

In terms of standalone cases, there where once again little new insights: many claims ended as usual because of a lack of evidence (or a lack of knowledge of competition law). Standalone judgments worth reading were rare this past year. For this reason, we discuss a small selection in more detail and, for the rest, suffice with a very brief overview.

Download the full article:

Chronicle civil case law competition law 2023

J. Mulder, A. Wissink en W. Heemskerk
Source: M&M 2024, nr. 1, p. 15-25