GCR 100 - 17th Edition

Netherlands

10 January 2017

Netherlands

As Europe’s new damages directive opens the door to even more private follow-on litigation, the firms in what is already a destination of choice for cartel damages claims are well placed to exploit this bonanza at home and abroad.

Elite

In 2000, ALLEN & OVERY merged with Dutch and Belgian firm Loeff Claeys Verbeke. It enjoys both local connections and a global network, says partner Kees Schillemans, who took over as competition head in September 2016 after Paul Glazener left to become a justice at The Hague supreme court. This year Yvo de Vries joined as a partner from Philips, where he was senior director of antitrust. Other senior figures in the practice – Peter Eijsvoogel and Tom Ottervanger – have been at the firm since before the merger. Eijsvoogel is a regulation specialist, while state-aid guru Ottervanger, now of counsel, is one of the titans of competition law in the Netherlands.

The firm is particularly strong in telecoms and media mergers. Schillemans is counsel to telecoms incumbent KPN. He advised the company on the €1.33 billion sale of Belgian mobile operator Base to Telenet, a deal that was cleared by DG Comp in February 2016. Previously, he managed the sale of its German subsidiary, ePlus, to Telefónica, which the European Commission approved in July 2015 with ground-breaking commitments. Eijsvoogel meanwhile advises KPN on regulatory matters. The team is advising VimpelCom, the parent company of WIND, on its €10.9 billion joint venture with CK Hutchison subsidiary 3 Italia, and Ahold on its €25 billion merger with Delhaize.

In follow-on damages, Schillemans is defending Samsung SDI against a claim arising from the cathode ray tubes cartel. Elsewhere the firm is advising UPS as a complainant in litigation before the European General Court on state aid issues that arose out of pension subsidies granted to Deutsche Post.

DE BRAUW BLACKSTONE WESTBROEK represents many of the Netherlands’ major corporations both domestically and internationally. Co-practice heads Jolling de Pree and Erik Pijnacker Hordijk work alongside three other partners, including Stefan Molin, who was promoted in November 2015, and 20 associates. De Brauw is fully integrated with the Brussels office where it works physically and metaphorically alongside its “Best Friends” – an association of Slaughter and May, Bredin Prat, BonelliErede, Hengeler Mueller and Uría Menéndez.

De Pree represents lorry company DAF in the commission’s truck cartel investigation, which resulted in a €2.93 billion settlement in July 2016. He also advised Philips, Lite-On and PLDS in the commission’s optical disc drives cartel probe, securing each company immunity from €116 million in fines that were imposed on eight other suppliers – the first time the commission granted joint immunity to multiple companies that were not part of the same corporate group. Philips remains a longstanding client, and de Pree led the electronics manufacturer’s appeal before the European General Court against a €20 million fine imposed by DG Comp for its role in alleged cartel in the smart card chips market. He also successfully defended Otis and United Technologies from a follow-on claim arising out of its role in the elevators cartel – the Court of Utrecht rejected the claim in July 2016.

On the merger front, Snoep advised global lithography systems manufacturer ASML on its €2.75 billion takeover of HMI, securing merger clearance in Singapore, Korea and Taiwan. Pijnacker Hordijk meanwhile advised AkzoNobel on its proposed €475 million acquisition of BASF Industrial Coatings.

Onno Brouwer and Winfred Knibbeler set up FRESHFIELDS BRUCKHAUS DERINGER’s Netherlands competition practice in 2000. Both divide their time between Dutch and EU matters. The team is heavily involved in competition litigation and follow-on damages claims. The firm acted for ABB in its defence against a US$38 million gas insulated switchgear cartel damages action brought by Tennet and Saranne. Its appeal was upheld by the Dutch Supreme Court, in a ground-breaking ruling that recognised the “passing-on defence” under Dutch law. The firm is also defending Thai Airways against follow-on claims arising out of the commission’s air cargo decision and acting for UPS in an appeal before the European General Court against the commission’s prohibition of its merger with TNT.

Before the Dutch trade and industry appeals tribunal (the court of last instance) Brouwer represents Ceres in an appeal against the authority’s 2012 flour cartel decision. He also acts for the Dutch Association of Real Estate Brokers (NVM) against an abuse of dominance complaint brought by rival VBO. The claim relates to NVM’s Funda website. Other abuse of dominance work includes advising Anheuser-Busch InBev on an investigation by the commission into parallel imports in the Netherlands, Belgium and France; and Vodafone in claim against KPN for €115 in damages, after it blocked access to its fixed-line network.

In merger control, the firm’s Dutch competition team is advising CK Hutchison on the commission’s Phase II investigation into its €21.8 billion Italian mobile telecoms joint venture with VimpelCom. It is also counselling Boskalis on its acquisition of the VolkerWessels offshore business.

Over the past decade, STIBBE has built on its expertise in behavioural work to become a leader in follow-on damage cases. “We were the first firm in the Netherlands that realised you needed litigation specialists,” says practice head Christof Swaak. He and partners Rein Wesseling and Jeroen Kortmann have excellent reputations and pride themselves on advising international companies on “bet-the-company” work. Commercial litigator Matthijs Kuijpers and Brussels-based Hendrik Viaene also work closely with the Amsterdam competition team, which was lead counsel to pharmaceuticals company Mylan on its €9.9 billion takeover of Swedish drugmaker Meda – a deal that was subsequently cleared by the European Commission with divestments in certain jurisdictions. Wesseling previously advised Mylan on its purchase of Abbott’s generics division, approved with conditions by the commission in January 2015. Behavioural work and litigation are what keep the firm busiest. Stibbe advises long-time client AkzoNobel on various competition issues and counselled it on two separate appeals against European Commission decisions related to the heat stabilisers cartel. The first appeal against DG Comp’s original 2009 fine was partially successful, securing annulments of fines against several AkzoNobel group entities and a one% reduction on the remainder of the fines. The second appeal against a 2011 decision by the European Commission to repeal a fine against another cartel member, thereby increasing the fine against AkzoNobel, was successful in full.

The firm continues to represent KLM and its subsidiary Martinair in follow-on damages claims arising out of the air cargo decision, even though the companies’ original fines were annulled by the European General Court in 2015. The team is also counselling Vodafone on an appeal against a decision by the national Authority for Consumers and Markets (ACM) to allow a tie-up between KPN and FTTH operator Reggefiber. The Rotterdam District Court rejected the action, but the firm has lodged a second appeal against the court’s decision.

Weyer VerLoren van Themaat leads the competition practice at HOUTHOFF BURUMA, working alongside counsel Berend Reuder in Amsterdam, and partner Laura Parret and counsel Gerrit Oosterhuis in Brussels. The firm tackles a mix of contentious and non-­contentious competition work.

The team defends Singapore Airlines and Cargolux in several air cargo follow-on damages claims before the Dutch courts, which were initiated by three separate special purpose vehicles on behalf of 1,500 claimants. Houthoff Buruma also advised supermarket chain Jumbo in a refusal to supply dispute with Heineken, which was eventually settled by the parties. In merger work, the firm represented Reggeborgh Group on the creation of a joint venture combining Argos Energy, Carlyle and Varo, in a deal that required notification to the European Commission. It also advised Parcom Capital and Pon Holdings on their joint acquisition of Imtech Marine, following the bankruptcy of Imtech Group.

Recommended

Promoted to counsel in 2016, Christiaan van der Meer now leads BAKER & MCKENZIE’s Dutch competition team alongside litigation partner Frank Kroes. The firm is busy with a steady stream of merger control matters, advising Daimler on its proposed acquisition of car-leasing company Athlon International, which was notified to DG Comp; Cool Investments on its takeover of V&D, the Netherlands’ largest department store; animal feed company Koninklijke De Heus on its acquisition of Coops; private equity fund Egeria in its buyout of snack food company Daloon; and Lutece on the sale of its company to Greenyard Foods. Away from deal work, the firm is counselling several companies defending follow-on claims. It is instructed as defence counsel by Mitsubishi Elevator Europe in three separate claims arising out of the elevator cartel decision and also by Ercros on claims that follow DG Comp’s sodium chlorate cartel decision. The firm is also advising a company confidentially in what the competition team describes as potentially the largest cartel investigation in the Netherlands for over a decade.

BARENTSKRANS is bringing several claims against participants in the major cartels, but practice head Joost Fanoy emphasises that the firm is moving beyond its traditional plaintiff stomping grounds. It still acts as counsel to claimants in almost all of the big cartel damages suits, including air cargo – where it is bringing claims for more than €500 million in damages: sodium chlorate, paraffin wax and elevators. But the firm also handles complex, often multi-jurisdictional, merger cases and competition litigation before the Supreme Court. It is currently acting for Sun Pharmaceutical Industries in an injunction hearing and is representing SGD in an appeal against article 101 findings. The firm regularly advises Infotheek on merger control work and recently represented the IT and software distributor in its acquisition of 4Launch and the sale of a majority stake to Swedisch.

Frederieke Leeflang co-heads the antitrust team at BOEKEL alongside Marc Kuijper, who became a partner in April 2016. Leeflang is one of the top competition lawyers in the Netherlands for healthcare matters, but his practice covers the full remit of competition law. The firm is active in follow-on damages litigation and acts for several Deutsche Bahn entities in claims against 11 companies that participated in the pre-stressed steel cartel. It also represents Vestel Group in its damages claim against members of the cathode ray tube cartel, and defends Japan Airlines and ENI in separate third-party damages proceedings arising out of the respective air cargo and paraffin wax decisions. The firm advised Klaas Puul, the second-largest producer and wholesaler of seafood in northwest Europe, on its immunity application to the European Commission and other national competition authorities to avoid liability for anticompetitive behaviour between wholesalers. It also provides ongoing merger control advice to Turkish multinational Zorlu Holding; and compliance advice to Superunie, a wholesale purchasing cooperative of 14 supermarket companies.

Counsel Frances Dethmers took over as head of the CLIFFORD CHANCE’s competition team in the Netherlands in 2015 after Steven Verschuur departed for EY. Dethmers has experience at the commission and the Dutch authority, and splits her time between Amsterdam and Brussels. In addition to some confidential matters, the firm is defending KONE in Dutch follow-on damages litigation arising from the elevators cartel – one of the largest cartel damages claims ever brought in the Netherlands. The team successfully defended KONE against claims brought by East West Debt in the District Court of Utrecht. The Amsterdam office also advised Staples on its failed acquisition of Office Depot; Mondi on its acquisition of Walki; and Pfizer on its respective deals with Hospira and Allergan.

CMS DERKS STAR BUSMANN’s practice head Edmon Oude Elferink took over the role from Robert Bosman last year. Both are based in Brussels, but average two days each week in Amsterdam and Utrecht. The firm continues to defend All Nippon Airlines against follow-on damages claims arising out DG Comp’s air cargo decision and also advised Dyckerhoff in a ready-mix concrete cartel investigation by the Dutch competition authority, securing termination of the probe without sanctions after offering commitments. Merger work is steady and the firm represented BMW on its proposed buyout of Parkmobile Group, a provider of electronic and digital parking solutions, which was cleared in Phase I by Germany’s Federal Cartel Office. Elsewhere the firm advised energy company DONG on offshore wind farm tenders and the Port of Rotterdam on state aid issues.

MAVERICK ADVOCATEN was the Netherlands’ first boutique focusing on pure competition. Established in September 2013, its three founding partners work with six lawyers and there are further plans for expansion. The firm is active in several interesting cases, across the full remit of competition. It is advising Sandd, the second largest postal operator in the Netherlands, in an abuse of dominance complaint against incumbent postal operator PostNL, which it accused of engaging in an exclusionary pricing strategy for large business customers. The team represents H&S Group, the largest provider of transportation services in the liquid food sector, which is appealing against a €12.5 million fine for its alleged participation in the cold storage industry cartel. On the merger front, the firm is advising mental healthcare providers Parnassia Groep and Stichting Antes on a €200 million deal, which has been sent to Phase II by the ACM. The practice also has a growing footprint in follow-on claims, defending Fapricela against claims arising out of the prestressing steel cartel, as well as British Airways in a contribution proceeding concerning a damages claim related to the air cargo cartel.

Herman Speyart, head of NAUTADUTILH’s competition practice, joined from the commission’s legal service in 2003 while Barbara Nijs, who was recently promoted to partner, has previously worked for the Dutch authority, the commission and Clifford Chance. The team also includes two litigation partners who specialise in cartel damage cases: Daan Lunsingh Scheurleer and Philip Malanczuk. The firm represents Vodafone Netherlands in the Dutch Vodafone/Ziggo telecom/Cable TV merger, and Ex-SNS real estate company Propertize in its current privatisation. The competition team is also assisting Technicolor in a claim brought by Turkish TV manufacturer Vestel against companies addressed in the 2012 cathode ray tubes decision.

STEK describes itself as a “behavioural practice with strong regulated market niches”. Regulatory practice head Jan Erik Janssen, previously a partner at Allen & Overy, is a top energy lawyer while counsel Ruben Elkerbout leads the specialist antitrust team. Much of Stek’s work is confidential, it says, but the firm acted in the grain-milling cartel and on various energy regulation matters. Transactional work includes advising Lone Star Funds on its acquisition of Propertize; PitPoint on a joint venture with Primagaz; and NIBC Mezzanine & Equity Partners on the management buyout of Fletcher Hotels.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Allen & Overy

Kees Schillemans

3 partners

2 of counsel

2 senior associates

7 associates

Tom Ottervanger

Kees Schillemans

Royal KPN, Vimpelcom, UPS, Delta, Parcom/Bakkersland, Samsung, Indorama, Kendrion, Cargill, the Dutch state

De Brauw Blackstone Westbroek

Erik Pijnacker Hordijk

Jolling de Pree

5 partners

20 asssociates

Erik Pijnacker Hordijk

Jolling de Pree

Martijn Snoep

Rabobank, FrieslandCampina, NXP, Ahold, Philips, ASML, AkzoNobel, AstraZeneca, DSM, DAF trucks, Schiphol Group, CRH

Freshfields Bruckhaus Deringer

Onno Brouwer

Winfred Knibbeler

2 partners

14 associates

Onno Brouwer

Winfred Knibbeler

ABB, ABN AMRO, Anheuser-Busch InBev, AS Watson, Atlas, Copco, Bavaria, Betfair, Blackstone, Bristol-Myers Squibb, PGGM, Ceres, CK Hutchinson, Canada Pension Plan Investment Board

Stibbe

Christof Swaak

4 partners

4 senior associates

16 associates

Christof Swaak

Rein Wesseling

Jeroen Kortmann

Mylan, AkzoNobel, Sonova, Vodafone, British American Tobacco, Air France-KLM, Schindler, ExxonMobil, voestalpine, Dutch Association of Banks, IKEA, Commerzbank, Credit Suisse

Highly recommended

Houthoff Buruma

Weyer VerLoren van Themaat

2 partners

2 counsel

3 senior associates

11 associates

Weyer VerLoren van Themaat

LG Electronics, Singapore Airlines, Tesla Motors, Kemira, Total, Nationale Nederlanden, Nederlandse Spoorwegen, AMC & VUmc, SHV Energy, Jumbo, Pon Holdings, Argos Energy, Reggeborgh Group

Recommended

Baker & McKenzie

Frank Kroes

Christiaan van der Meer

1 partner

1 counsel

3 associates

2 economists

None

Shell, Allianz, Accenture, Monuta, Mitsubishi, Eneco, Egeria, Ercros, Koninklijke De Heus, Abbott, Daimler, Specsavers, IDEXX Laboratories

BarentsKrans

Joost Fanoy

2 partners

4 associates

None

TUI, Canon, IBM, KPN, Dell, Exterion Media, BMW, Claims Funding Europe, Cartel Damage Claims, Pinsch Aben, Albron, PwC, Ferrero, Infotheek, HTM, Heutink Onderwijs, Koninklijk Vervoer, LTO

Boekel

Frederieke Leeflang

Marc Kuijper

2 partner

1 senior associate

2 associates

Frederieke Leeflang

Japan Airlines, Deutsche Bahn, Klaas Puul, Stichting De Glazen Lift, Koninklijke Horeca Nederland, ENI, Superunie, Spaansen Holding, Unibail Rodamco, Interparking, Zorlu Holding

Clifford Chance

Frances Dethmers

1 counsel

4 associates

None

CVC, Egeria, Dutch Central Bank, HES International, KKR, KONE, Pfizer, Riverstone, Sanoma, TBG Europe

CMS Derks Star Busmann

Robert Bosman

2 partners

4 associates

None

All Nippon Airlines (ANA), Bayer, BMW, DONG, NYK (Nippon Kabushiki Kaisha), Dyckerhoff, Port of Rotterdam, Medtronic

Maverick Advocaten

Bas Braeken

Diederik Schrijvershof

Martijn van de Hel

3 partners

6 associates

None

Parnassia Groep, Arkin, Sandd, T-mobile, British Airways, Mediq, Fapricela, DSM Sinochem, Unilever, Panalpina

NautaDutilh

Herman Speyart

4 partners

8 associates

None

TOTAL, Siemens, Dutch Central Bank, Iglo, Otis, Vodafone, NPO, Lego, Europe Container Terminals, Johnson & Johnson

Pels Rijcken & Droogleever Fortuijn

N/A

N/A

None

N/A

Stek

Jan Erik Janssen

2 partner

1 counsel

3 associates

None

N/A

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