1. Antitrust litigation Experiences in the Netherlands
Michel Deckers

2. Antitrust litigation in the Netherlands - overview
Air Cargo (I) – Equilib, claim > EUR 500 million
Air Cargo (II) - East-West-Debt, claim > EUR 100 million
Elevators and Escalators (I) - Stichting De Glazen Lift, claim > EUR 50 million
Elevators and Escalators (II) – Stichting Elevator Cartel Claim, claim > EUR 100 million
Paraffin Wax – CDC Project 14, claim > EUR 300 million
Gas Insulated Switchgear – Tennet, claim > EUR 100 million
Beer – KHN (Dutch trade organisation restaurants, hotels and cafés), claim
Bitumen (asphalt) – Road construction company, claim > EUR 30 million
Sodium Chlorate – non specified
Hydrogen Peroxide – non specified
Organic Peroxides – non specified

3. Antitrust litigation in the Netherlands - examples
Air Cargo - The European Commission has fined 11 air cargo carriers a total of EUR 800 million for operating a worldwide cartel. Fined airlines include Air Canada, Air France-KLM, British Airways, Cathay Pacific, Cargolux, Japan Airlines, LAN Chile, Martinair, SAS, Singapore Airlines and Qantas. The carriers coordinated their action on surcharges for fuel and security without discounts over a six year period. Two “claim vehicles” started litigation on the Netherlands on behalf of large groups of (international) claimants. These are the largest cases pending.
Paraffin wax (candles)– The European Commission imposed a total of approximately EUR 676 million fines on 9 groups - ENI, ExxonMobil, Hansen & Rosenthal, Tudapetrol, MOL, Repsol, Sasol, RWE and Total - for participating in a cartel for paraffin wax. Cartel Damages Claims Project 14 started litigation in the Netherlands. Of all the defendants, only the mother company of Shell is based in the Netherlands. It had been assigned claims form eight European purchasers of paraffin wax.
Elevator cartel (I) - The European Commission fined manufacturers of elevators and escalators that participated in the elevator and escalator cartel approximately EUR 992 million for fixing prices and market sharing. We currently assist more than 40 Dutch social housing associations – that collectively own over 20% of the elevators in The Netherlands – in seeking damages from elevator manufacturers ThyssenKrupp, Otis, Schindler, Kone and Mitsubishi. In order to facilitate collective redress we advised the individual housing associations to assign their claims to a foundation, Stichting De Glazen Lift.
Bitumen cartel (asphalt) - The European Commission imposed cartel fines of over EUR 266 million on 8 suppliers including Shell, BP, Total, Nynas, and Kuwait Petroleum and 6 large purchasers (Dutch road construction companies) of road bitumen in The Netherlands. The cartel members fixed the gross price of all road pavement bitumen sold in the Netherlands, and agreed uniform minimum rebates for the construction companies that were cartel members, and a smaller maximum rebate for all other road builders. On behalf of our client, another road builder in the Netherlands, we have initiated civil proceedings against Shell in order to recover all damages suffered (on the basis of joint and several liability).

4. Litigation in the Netherlands - characteristics
Long history of cartel litigation in the Netherlands
Facilitated by the legislators
Practical judges and swift proceedings
Relative low litigation costs
Probative effect of EC Decisions
Joint and Several Liability
Passing on defence
Disclosure of evidence – (limited) disclosure of documents, witness testimony
Quantification of harm – assessment ex aequo et bono

5. Dutch Collective Settlements Act (opt-out)
Amsterdam Court of Appeal - declaring an (international) settlement binding
A party that has inflicted damages and a representative of the group of injured parties can enter into a settlement agreement;
Parties to the settlement agreement file a joint request with the Amsterdam Court of Appeal to declare the settlement agreement binding on all injured parties;
Opting out for individual injured parties is possible;
Damages can be claimed if a party can demonstrate that it forms part of a ‘class’ of injured party as described in the settlement agreement.
Example settlement of mass claims – Converium settlement
A US court declined jurisdiction over a claim for settlement between Swiss company Converium and its non-US shareholders;
The Amsterdam Court of Appeal welcomes all non-US shareholders to settle the dispute in the Netherlands in accordance with the Dutch rules on collective settlements;
This landmark case allows for many more international mass claims to be settled in the Netherlands – including cartel damages claims.

6. Your Contact Michel Deckers Partner Amsterdam Amsterdam London
T M E
Amsterdam London
Gustav Mahlerplein Cornhill
1082 MA Amsterdam 6th Floor
EC1R 1XG London