Consumer association and claims foundation left empty-handed as cartel damages claims ruled inadmissible by Dutch district court

On 19 October 2022 the district court of Oost-Brabant ruled that claims brought by Dutch consumer association Consumentenbond and foundation Stichting Aequitas Belangenbehartiging (Aequitas), relating to cartel damages resulting from the cathode-ray tubes cartel, were inadmissible.

The claimants had brought their claims against Philips, one of the participants in the cathode-ray tubes cartel, and sought a declaratory judgment that Philips had infringed EU competition law and was thus liable to pay damages.

The Consumentenbond and Aequitas did not base their claims on the Dutch Act on Settlement of Mass Damages Claims in Collective Actions (WAMCA) which entered into force on 1 January 2020, as this only allows for collective actions on behalf of a group of claimants in relation to damages resulting from events occurring after 15 November 2016. The cathode-ray tubes cartel had ended years before that date. The claims were instead based on a former authority for collective proceedings, Article 3:305a of the Dutch Civil Code, which does not allow for claims for damages but does allow requests for declaratory judgments concerning, for example, alleged unlawful behaviour.

Philips argued that Consumentenbond and Aequitas did not have standing to bring the claims. According to Philips, the interests of the persons for whose benefit the claim was brought were not sufficiently guaranteed and the claims would not lead to (more) effective and efficient legal protection. The district court largely followed this reasoning in its judgment.

First, the district court ruled that a declaratory judgment on the infringement of Article 101 TFEU/53EEA by Philips in collective proceedings would have no additional value, as national courts are already bound by the European Commission's decision in this respect. The same applies to declaratory judgments to the effect that Philips and its joint venture are part of the same undertaking. Simply put, this is already set in stone and collective proceedings have nothing to add in this respect.

With regard to the establishment of Philips' liability for damages (in general), the district court noted that it is not possible to seek a declaratory judgment that the defendant is liable for the damages incurred by the injured parties. The district court referred to the Vie d'Or judgment, in which the Dutch Supreme Court reasoned that on the basis of Article 3:305a, a claim for a declaratory judgment that defendants are jointly and severally obliged to compensate damage suffered by individual injured parties cannot be granted, because it does not differ substantially from a claim for damages, which Article 3:305a does not allow.

Consumentenbond and Aequitas referred to the WAMCA and the EU Cartel Damages Directive but their arguments were dismissed as irrelevant by the court because these laws were inapplicable to the matter. As to the principles of equivalence and effectiveness of EU law, the district court noted that these serve to protect the individual natural or legal person's right to compensation for damages, but not any rights of representative organisations.

The district court noted that this does not mean that claimants or stakeholders are prevented from exercising their EU rights as a consequence of Article 3:305a. The district court observed that Consumentenbond and Aequitas could have bundled their claims “in a different way”. While the court did not specify how claimants could have bundled their claims, assignment to a special purpose vehicle might have been an option.   

In summary, Consumentenbond and Aequitas did not have standing. The proceedings, however, are not closed. In addition to the Consumentenbond and Aequitas, several individual consumers have filed claims against Philips, which will be assessed by the district court at a later stage.

Consumentenbond has called the judgment “remarkable” and “a setback”. In a news article, a representative of Consumentenclaim (one of the parties that cooperated with the Consumentenbond to gauge interest of consumers in the claim) indicated that Consumentenbond plans to appeal the decision.