Dutch Court accepts jurisdiction for damage claims of non-EU claimants and provides guidance on the interpretation of limitation periods

On 27 June 2018 the Dutch District Court of East Brabant rendered an interim judgment (ECLI:NL:RBOBR:2018:3170) on the limitation periods of damage claims initiated by a Turkish company Vestel Ticaret A.Ş. (Vestel) against various international companies which were members of the cathode ray tubes cartel (CRT Cartel). The Dutch Court accepted jurisdiction of the case as one of the defendants is located in the Netherlands (Koninlijke Philips Electronics NV (Philips)). It was concluded that the claim brought by Vestel was not time-barred according to Turkish law, which was deemed to be the applicable law by the Court.

The damage claims resulted from the Commission Decision of 5 December 2012, where Philips and seven other participants had infringed article 101 of the TFEU and article 53 of the EEA Agreement by having participated in the CRT cartel. The addressees of the decision fixed prices, allocated market shares and restricted output. The damage proceedings were initiated on 26 November 2014.

According to Turkish law, there is a subjective limitation period of one (article 60 TCO old) or two years (article 72 TCO new), depending on whether the new or old law of the Turkish Code of Obligations is applicable. There is also an objective limitation period of 10 years under both laws. The new law is applicable as from 1 July 2012. The claimants were arguing that the subjective limitation period starts from the actual knowledge of the damage and the identity of the liable person. Concretely, this would mean the day the Commission published its decision therefore the day of the press release which was on 5 December 2012. On the other hand, the defendants were of the opinion that Vestel should have been aware of the infringements before November 2012, meaning that the old law is applicable and that by November 2014, the claim is time-barred.

The Court followed the claimant’s argumentation and also stated that the defendant failed to demonstrate Vestel’s relevant knowledge of the claim before the publication of the press release. Accordingly, the Court concluded that the two-year limitation period started to run on 5 December 2012 and that the new limitation period of two years was applicable.

Regarding the application of the objective limitation period, the Court also followed the claimant’s reasoning and concluded that the objective limitation period starts to run from the moment the alleged cartel ended. This limitation period had not yet expired, as the cartel infringement terminated in November 2006.

Consequently, the Court held that the damage claim is not time barred under Turkish law and is therefore admissible. It still remains to be seen how the Court is going to assess the affectedness of the cartel and the quantification and allocation of damage among others. However, this judgment confirms that non-EU companies have standing to bring damage actions for the breach of EU competition law and that Dutch courts are willing to apply and assess the respective national law, even if the respective jurisdiction lies outside the EU so that EU law principles are not directly applicable.

by Yaël Rager and Till Schreiber

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