ڪارٽيل نقصان: هالينڊ ۾ معاوضي جي دعويٰ ڪيئن ڪجي

Cartel damages: if you paid too much because of a cartel, you can claim compensation from the cartel participants in the Dutch civil courts. The claim is a tort claim under Article 6:162 of the Dutch Civil Code (BW), made easier by two rules: a final infringement decision of the Authority for Consumers and Markets (ACM) is irrefutable proof of the infringement (Article 161a of the Code of Civil Procedure, Rv), and a cartel is presumed to cause harm (Article 6:193l BW).

What you still have to prove is how much you lost. That is where most cases are decided: the overcharge, the passing-on defence and access to evidence. Your claim expires five years after the cartel ended and you knew of the infringement, the damage and the liable party (Article 6:193s BW).

What is the legal basis for a cartel damages claim?

A cartel infringes Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 6 of the Dutch Competition Act (Mededingingswet, Mw). Anyone harmed by it can claim damages under Article 6:162 BW.

The Court of Justice of the EU confirmed this right in Courage v Crehan (C-453/99) and Manfredi (C-295/04). Directive 2014/104/EU on antitrust damages actions was implemented in Articles 6:193k to 6:193t BW and in the Code of Civil Procedure. Those rules apply to infringements of Articles 101 and 102 TFEU and of Articles 6 and 24 Mw, as Article 6:193k BW defines.

How do you establish the infringement?

In a follow-on claim you rely on a decision of a competition authority. Under Article 161a Rv a final infringement decision of the ACM is irrefutable proof of the infringement it establishes. A decision of the European Commission also binds the Dutch court, because under EU law a national court may not rule against it.

In a standalone claim there is no such decision. You must then prove the cartel yourself, which is difficult because cartels are kept secret. Most claims in the Netherlands are therefore follow-on claims.

Each participant is liable for the whole damage caused by the joint infringement, under Article 6:193m(1) BW. You can therefore sue one participant for the full amount; the participants settle among themselves. On 28 November 2025 the Supreme Court (Hoge Raad) held in the lift cartel case (ECLI:NL:HR:2025:1761) that a participant is not liable for harm caused before it joined the cartel.

How is the overcharge calculated?

The overcharge is the difference between the price you actually paid and the price you would have paid without the cartel, multiplied by the quantity bought. Article 6:193l BW presumes that a cartel causes harm, but not how much.

Economists determine the counterfactual price by comparing prices before and after the cartel, prices in an unaffected market or region, or through regression analysis that filters out other factors such as raw material costs. You can also claim lost profit if the higher prices reduced your sales, and statutory interest.

If the exact amount cannot be calculated, the court may estimate the damage under Article 6:97 BW. Umbrella damages, caused by non-cartel competitors that raised their prices in the cartel’s shadow, may not be excluded categorically under national law, the Court of Justice held in Kone (C-557/12).

What must you show to get a referral to separate damages proceedings?

The court can decide liability first and refer the calculation to separate damages proceedings (schadestaatprocedure). In the lift cartel ruling of 28 November 2025 (ECLI:NL:HR:2025:1761) the Supreme Court accepted that this requires a basis for liability and a plausible possibility of damage.

The same ruling shows the limit: a claimant must show at least one direct or indirect purchase from a cartel participant during the infringement period. Merely owning an affected product during that period was not enough. Collect your invoices and contracts early.

How does the passing-on defence work?

A defendant can argue that you passed the overcharge on to your own customers and therefore suffered no loss. Article 6:193p BW allows this defence; the defendant must prove it.

The Supreme Court ruled in TenneT/ABB on 8 July 2016 (ECLI:NL:HR:2016:1483) that the court may assess passing-on either as part of the damage calculation or as attribution of a benefit under Article 6:100 BW. It may place the burden of proof on the infringer. You can counter the defence by showing fixed-price contracts with your customers, strong downstream competition, or a volume effect: lost sales because you raised your prices.

Indirect purchasers have their own claim. Under Article 6:193q BW an indirect purchaser is presumed to have proven passing-on if it shows the infringement, an overcharge for the direct purchaser, and that it bought the affected goods or services or products made from them. The defendant can rebut that presumption.

Individual claim or collective action?

You can bring your own claim, assign it to a claim vehicle, or join a collective action. Under Article 3:305a BW a foundation or association can bring a collective damages claim for a group of victims if it is representative and meets governance and funding requirements.

Dutch residents in the defined group are bound unless they opt out within a period set by the court of at least one month after the announcement, under Article 1018f Rv. Our guide to the هالينڊ ۾ طبقاتي ڪارروائي sets out the admissibility requirements.

A collective action shares cost and risk, often with a litigation funder, but you lose control over strategy and settlement. An individual claim gives you control and a claim tailored to your own loss, but you carry the full cost risk. For smaller buyers a collective route is often the only practical one; large buyers more often sue individually or through a claim vehicle.

A Dutch court often has jurisdiction over foreign cartel participants as well, if one co-defendant (the anchor defendant) is domiciled in the Netherlands, under the EU rules on jurisdiction (Brussels I bis Regulation).

How do you get hold of the evidence?

Under Article 194 Rv, in force since 1 January 2025, a party to a legal relationship can demand access to, or copies of, specific data held by another party if it has sufficient interest. For competition damages claims, Articles 844 to 847 Rv add special rules.

The holder may refuse only for weighty reasons (Article 845 Rv). Leniency statements and settlement submissions in a competition authority’s file are never disclosed and cannot be used as evidence, under Article 846 Rv. Other documents prepared specifically for the authority’s procedure are disclosed only after that procedure has ended, under Article 847 Rv.

If a party refuses to produce records it is required to keep by law, the court can draw the conclusions it considers appropriate, under Article 162(2) Rv. The court can also appoint an independent expert, for example an economist, to assess the overcharge.

When does a cartel damages claim become time-barred?

Under Article 6:193s BW the claim becomes time-barred five years after the day following the day on which the infringement ended and you knew, or could reasonably have known, of the infringement, the damage and the liable party. In any event the claim expires twenty years after the infringement ended.

An investigation by a competition authority extends the period. Under Article 6:193t(2) BW the extension equals the time needed for a final infringement decision or other end of the procedure, plus one year. Out-of-court dispute resolution, such as mediation, also extends it. To be safe, interrupt limitation (stuiting) with a written claim letter to every participant you may want to sue.

What should you check as a buyer who may have been overcharged?

• Check whether the ACM or the European Commission has issued an infringement decision covering your market and purchase period.
• Collect invoices, contracts and price lists from the infringement period and the years around it.
• List which purchases were made directly from cartel participants and which through intermediaries.
• Check what you did with the extra cost: fixed-price contracts with your customers weaken a passing-on defence.
• Calculate the five-year limitation period under Article 6:193s BW and send interruption letters in time.
• Find out whether a collective action or claim vehicle already covers your claim, and whether you are bound unless you opt out.

What should you check as a company facing a cartel damages claim?

• Check the period and scope of the infringement decision against the claimant’s purchases.
• Check from which date your company took part: there is no liability for harm caused before that date.
• Assess whether the claimant passed the overcharge on, and gather the data to support that defence.
• Check whether the claim is time-barred under Articles 6:193s and 6:193t BW.
• Assess recourse against other participants for their share of the damage.
• Identify which documents in your files are protected under Articles 846 and 847 Rv.

What can we do for you with a cartel damages claim?

اسان ڪاروباري وڪيل act for businesses that were overcharged by a cartel and advise on وڏي پئماني تي نقصان لاءِ اجتماعي دعويٰ.

• We check your purchase records against the scope and period of the infringement decision.
• We send limitation-interrupting letters to the cartel participants.
• We request disclosure of evidence under Article 194 Rv and the special competition rules.
• We work with economists on the overcharge calculation and the response to a passing-on defence.
• We compare an individual claim with joining a collective action or claim vehicle.
• We conduct the proceedings before the Dutch court, including separate damages proceedings.

خلاصو

• A cartel victim claims damages under Article 6:162 BW; a final ACM decision is irrefutable proof of the infringement (Article 161a Rv).
• Harm is presumed (Article 6:193l BW), but you must substantiate the amount, usually with economic analysis.
• The defendant must prove passing-on; indirect purchasers benefit from a presumption (Article 6:193q BW).
• Evidence can be requested under Article 194 Rv; leniency statements are excluded (Article 846 Rv).
• The claim expires five years after the infringement ended and you knew the relevant facts, extended during an authority’s investigation.

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