News Update

In a recent judgement (in Dutch), the Oost-Brabant District Court (the "District Court") held that claims for damage suffered by consumers of TVs and computer monitors could not be awarded under Article 3:305a (old) Dutch Civil Code (the "DCC"). The judgement concerns events predating the application of the Dutch Act on Collective Damages Claims (Wet afwikkeling massaschade in collectieve actie,  "WAMCA"), which entered into force on 1 January 2020. The WAMCA makes it possible to claim monetary damages in a collective action in the interests of an unnamed group of claimants in relation to events that occurred on or after 15 November 2016.

The Judgement 

Together with five individuals, the Dutch consumer association "Consumentenbond" and the foundation "Stichting Aequitas Belangenbehartiging" (the "Claim Vehicles") brought a collective action against Koninklijke Philips N.V. ("Philips") claiming a declaration of Philips' liability to pay damages for EU competition law infringements. The claimants cited infringements of Article 101 Treaty of the Functioning of the European Union ("TFEU") and Article 53 European Economic Area Agreement ("EAA") relating to cathode ray tubes for TVs and computer monitors ("CRTs"). The infringements were established in the European Commission's Decision of 5 December 2012 (Case AT.39437 – TV and computer monitor tubes).  The District Court ruled on the admissibility of the Claim Vehicles' claims on grounds of Article 3:305a (old) DCC. The term to lodge an appeal is running at the time of this News Update. 

Key takeaways

• A claim for a declaratory judgement holding that: (a) the Claim Vehicles can directly rely on Article 101 TFEU; (b) Philips and its joint ventures infringed Article 101 TFEU; and (c) both Philips and the joint venture form part of the same undertaking, brings no added value. Under Article 16 of Regulation (EC) No. 1/2003, national courts are bound by the operative part of the Commission decisions and the findings that support these decisions. Furthermore, Article 101 TFEU has direct effect (confirmed in the European Court of Justice's ("CJEU") Courage/Crehan and Otis judgements).

• It is not possible to hear a claim for a declaratory judgement that Philips and its joint ventures form part of the same 'undertaking' within the meaning of Article 101 TFEU. This is because the question as to which entities must compensate damage due to a breach of Article 101 TFEU is also directly governed by EU law (as established in the CJEU's Skanksa judgement). There is no room for any assessment or reassessment of Philips' liability for acts committed by the joint ventures under Dutch national law.

• A request for a declaratory decision to establish joint and several liability for damage or for umbrella damage caused by an EU competition law infringement established by the European Commission, falls outside the scope of Article 3:305a (old) DCC. The hearing of such a claim requires the assessment of causality and damage, which in turn requires an assessment of the specific circumstances of each individual interested party, while the nature of a collective action requires that the action can only be brought and assessed if the interests that are represented are sufficiently similar. The EU law principles of equivalence and effectiveness do not impose a duty on Member States to facilitate such collective actions. These principles protect the individual's right to compensation, but not the representative organisation's rights.

• Claims to establish liability for damage could in principle be brought under the WAMCA if they relate to events that occurred on or after 15 November 2016. In this case, the infringing events predated the application of the WAMCA. Based on the above, all claims of the Claim Vehicles were declared inadmissible. The District Court has not yet ruled on the admissibility of the claims of the individual claimants.

The District Court held that the Claim Vehicles could have brought the claims differently, for example in a bundle of assigned claims, or that interested parties could have initiated proceedings on an individual basis. The question is whether proceedings based on the assignment model – in which a claim vehicle purchases each individual claim for a deferred purchase price and files a bundle of individual claims – would have been more successful. The Amsterdam District Court recently rendered an interim judgement (in Dutch) in a group of cartel damages actions against European truck manufacturers based on the assignment model. The Amsterdam District Court ruled that those claim vehicles were not bound by the admissibility requirements for claim vehicles under Article 3:305a (old) DCC (ground 2.8). However, the Amsterdam District Court noted that the fact that the parties represented by the claim vehicles were professional purchasers of trucks was of overriding importance for its conclusion. The Amsterdam District Court found that the requirements of Article 3:305a (old) DCC and the WAMCA are primarily meant to protect non-professional injured parties, who are often consumers.

The question is whether, in the CRT damages case, the Oost-Brabant District Court would have ruled differently if the Claim Vehicles had litigated based on an assignment model, bearing in mind that the parties represented by the Claim Vehicles were private purchasers of TVs and computer monitors. Furthermore, even if an assignment model claim representing consumer interests were admissible in principle, the claim vehicle would still have to substantiate and furnish facts for each individual claim (see another judgement (in Dutch) dated 15 May 2019 on a group of cartel damages actions against European truck manufacturers, ground 3.26).

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