The District Court of Gelderland (Court) has for the second time awarded cartel damages. Taking account of legal interest, TenneT was awarded EUR 68 million. The Court decided not reduce this amount by any benefit TenneT was likely to have had from passing on the cartel-related overcharge. The judgment is difficult to reconcile with a previous judgment of the Dutch Supreme Court and the compensatory nature of Dutch tort law.
In actions for damages, defendants may contest the harm suffered by the plaintiff, if the plaintiff has passed on some or all of the overcharge it paid to its clients. This is called the passing-on defense. The Dutch Supreme Court has confirmed that this defence may be invoked under Dutch law.
In this judgment, the Court nevertheless did not accept the passing-on defence. It argued:
- TenneT's customers are Dutch energy consumers whose damage is difficult to establish. It is not to be expected that Dutch energy consumers will initiate damages proceedings.
- If damages are awarded to TenneT (owned by the Dutch state) this will, according to the Court eventually benefit the Dutch energy consumer.
This judgment seems to result in the overcompensation of TenneT, which is contrary to the Dutch law and the European Damages Directive. In addition, the suggestion that there is no question of overcompensation as any benefit to TenneT will be transferred to the "Dutch energy consumers" is logically and legally flawed. Today's "Dutch energy consumer" may not have been a Dutch energy consumer at the time of the overcharge. The benefit is unlikely to compensate the right party.
Van Doorne is involved in competition law damages litigation. If you wish to receive more information on this subject, please contact Sarah Beeston via Beeston@vandoorne.com or +31206789650.