Follow-on damage claim: Dutch judge rejects requests for pre-procedural court supervised settlement negotiations
Under Dutch civil procedural law, third parties claiming to have incurred damages as a result of a cartel (or organisations representing these parties) may start legal proceedings against (alleged) cartelists and ask for a declaratory judgment as to the latter’s liability.
This procedure is often an important preliminary step to a settlement which may then be declared generally binding pursuant to proceedings under the Dutch Act on Collective Settlement of Mass Damage Claims (the WCAM).
In addition, the WCAM also provides for a possibility to try to come to a settlement under the supervision of a court before collective damages claim proceedings are initiated. Both the parties claiming damages from (alleged) cartelists and the defendants against such claims may request Dutch courts to hold such pre-procedural appearance. The goal of this provision is to encourage parties to come to a settlement.
In two recent judgments in relation to the TV and computer monitor tubes cartel (judgement) and the trucks cartel (judgement), a court rejected a request submitted by claim vehicles to that effect. Both judgments were rendered by the same judge on 29 March 2018. From a material point of view, the judgments are also quite similar. The three main points of the judgments are as follows:
- first, the judge rules that the court is not obliged to initiate a pre-procedural appearance if so requested; the WCAM merely states that the judge may initiate such a proceeding upon request;
- second, the court must assess whether a pre-procedural appearance is useful. In both cases the court rules for several reasons that it seems pointless to initiate pre-procedural settlement talks, among other reasons since many of the defendants seem unwilling to participate in such proceedings; and
- third, the court rules that both requests were not detailed enough as (among other factors) they do not specify on which issues the intervention of the court is needed. In addition, the requests did not provide an agenda for the pre-procedural settlement negotiations.
If you have any further questions on this issue or would like to receive more information, please contact your trusted adviser at the Loyens & Loeff Competition Team.