Summary

This doctoral thesis deals with the private law consequences of a violation of competition law. Competition law is based on a number of pillars. The first pillar is the ban on cartels (Article 101 TFEU). The second pillar consists of the prohibition of abuse of a dominant economic position (Article 102 TFEU). The prohibition on State aid is the third pillar (Articles 107 and 108 TFEU). The fourth pillar is the supervision of mergers. My research is aimed at the first three pillars. The TFEU provides in Article 101(2) for the nullity of agreements that restrict competition within the internal market. At the same time, Union law leaves the private law consequences of an infringement of Union competition law to the Member States. However, it is essential that the full effectiveness and purpose of competition law rules are ensured when seeking and applying private law remedies. Furthermore, there are other requirements imposed by European law which must be met, for example on the basis of the principle of equivalence. That raises the question as to what European law requirements are imposed on national law to ensure that the rights of claim arising from European law can be exercised.

In Chapter 1 I have defined the problem and structure of the research. It explores whether there is a difference between the legal consequences of nullity under Article 101(2) TFEU and the consequences of nullity pursuant to Article 3:40 of the Dutch Civil Code. In addition, it was examined whether in respect of a breach of Articles 102, 107 and 108 TFEU the same considerations apply as with a breach of Article 101 TFEU. On the matter of State aid, it discusses the legal status of juridical acts which implement unlawful State aid.

Aggrieved parties apparently encounter obstacles when they seek to claim damages for the harm they have suffered as a result of an infringement of Articles 101 and 102 TFEU. For instance, various investigations by the Commission showed that the gathering of evidence in antitrust cases often presents an obstacle. The lack of clear rules on the extent of damage to be compensated is also such an obstacle. (Consider) In this context the debate on the passing-on defence should be considered.

The question which formed the central focus of my research is:

What are the consequences of European competition law for legal relationships under private law in terms of the validity of juridical acts and the classification of other acts carried out in breach of competition law; what implications follow from this for these legal relationships and how can the rights arising from a violation of competition law be enforced under private law?

Chapter 2 deals with the content of the individual articles of competition law rules.1 It addresses the ban on cartels, the prohibition of abuse of a dominant position, concentrations, and State aid. Chapter 2 also looks at the public-law enforcement of competition rules.2

Chapter 3 focuses on the adverse effects on juridical acts under Dutch law. The Dutch Civil Code provides in Article 3:40 BW for the nullity of juridical acts which are contrary to good morals or public order, or the law. After examining the scope of Article 3:40 BW in a context where European (competition) law does not apply, it addresses the question of how the impact of European competition law manifests itself in the application of Article 3:40 BW.3 It also considers the possibilities of relativising the nullity under European competition law and under national law.4 The most significant observation is that a distinction should be made between the legal consequences arising from the nullity due to a breach of Article 101 TFEU and the legal consequences arising from the nullity under Article 3:40 BW. The fact that a juridical act infringes the prohibition of abuse of a dominant position or the rules on State aid determines the type of relativisation which could apply, because the aim of the violated rule affects the legal consequences arising from Article 3:40 BW and the possibilities of relativisation.

Chapter 4 discusses what European law requirements are imposed on national law to ensure that the rights of claim which arise from European law can be exercised. It deals with private law remedies that may be deployed to claim damages for the harm which one has suffered as a result of a violation of European competition law. It was first examined whether it is possible for aggrieved parties to base a claim for the recovery of damages on European private law remedies.5 With regard to the extra-contractual liability under European law (for a violation of competition law), private individuals are in certain circumstances liable for violating European provisions that have horizontal direct effect. The conditions governing liability concern the infringement of a rule of European Union law intended to confer rights on private individuals, the existence of damage, and a causal link between the violation and the loss. In the case of both the European Union law claim for refund of undue payment as well as the European Union law claim arising from unjust enrichment, further clarification must be provided in the future on the implementation of both claims. The private law remedies which are discussed in the framework of European law are also examined in a Dutch context.6

Chapter 5 addresses the question of how the rights arising from European law can be exercised with the available legal remedies and what problems could be involved in this. The key focus is on violations of the ban on cartels and the prohibition of abuse of a dominant position. It was examined which courts have jurisdiction to rule on a dispute and which law is applicable to a dispute.7 Articles 7 and 8 EEX, in particular, are relevant in determining which court has jurisdiction in the event of a dispute arising froman infringement of Articles 101 and 102 TFEU. Article 7(2) EEX states that in addition to the forum rei (Article 4 EEX), the court of the place where the harmful event occurred or may occur shall also have jurisdiction. The place where the harmful event occurred or may occur can be either the place where the event giving rise to the damage occurred (the “Handlungsort”) or the place where the damage itself occurred (the “Erfolgsort”). With regard to antitrust law, the Court has – in the CDC-judgment – linked jurisdiction to the location where additional costs were paid due to an artificially high price, i.e. the Erfolgsort. That location, according to the Court, is in principle the place where the corporate seat of the aggrieved undertaking is located. The Handlungsort can be considered as the location where the cartel agreement was concluded or where consultations between the cartel participants were held. The court in that Member State is competent to rule on the entire damages. When an anti-competitive arrangement has been established through a number of cartel agreements in different meetings at various locations, it is necessary to assess whether there is a single specific arrangement which has given rise to the loss suffered by the claimant. The court of the place where the agreement concerned was made is competent to rule on the claim for compensation by the aggrieved party. The question of which law is applicable to a dispute is governed by Rome II as long as it is not an obligation that arises out of an agreement. In accordance with Article 6(3) Rome II, a non-contractual obligation that arises from a restriction of competition is governed by the law of the country in which the market is (likely to be) affected. When the market is affected in multiple countries, the aggrieved party may choose to base its claim on a single legal system. This should be the legal system of the court to whom the claimant submits the dispute. The competent court who hears the proceedings should be the court of the domicile of one of the defendants.

Furthermore, I have discussed a number of procedural matters not related to jurisdiction or applicable law.8 The implementation of the adopted directive on damages actions is also given attention.9 A particular issue in this context is the possibility of invoking a passing-on defence by the party held liable. Article 13 of the adopted ‘Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union’ (the Damages Directive) explicitly recognises the passing-on defence. The defendant may contend that the claimant has passed on the overcharge caused by the infringement of competition law. The defendant has the burden of proof that the overcharge was passed on. In Germany the passing-on defence is laid down in § 33 (3) of the Gesetz gegen Wettbewerbsbeschränkung (GWB) [Act against Restraints on Competition]. German law therefore complies with Article 13 of the Damages Directive. The passing-on defence is allowed under German law if there is a sufficiently direct causal link between the overcharge applied by the direct purchaser and the infringement of antitrust law. In the Netherlands the passing-on defence is already recognised and adaptation of the Civil Code is in principle not necessary. I have concluded the content-related section of Chapter 5 with a discussion of a number of case studies.10

Chapter 6 deals with German legislation relevant to the subject of this research. An examination of German law serves as an inspiration when answering the research questions. For example, German law provides for a separate legal action to enforce the private law rights arising from an infringement of Article 101 or Article 102 TFEU (or its German equivalents). This procedure is laid down in § 33 GWB.11 The decision to include a separate basis for compensation in the GWB offers the possibility to respond rapidly to the requirements imposed by European law and take into account the fine details of competition law. This chapter further deals with the adverse effects on juridical acts and the possibilities of relativising nullities pursuant to German law.12

In Chapter 7 I have come to the conclusion that there is a European concept of nullity in Dutch private law which has consequences of its own. The legal consequences of nullity under Union law pursuant to Article 101 (2) TFEU can be different from the consequences of nullity arising from Article 3:40 BW because Union law has its own rules on the legal consequences (and relativisation possibilities) of nullity under Union law. On the basis of that nullity, private individuals may bring an action for damages caused by the infringement of European law. It is for the internal legal order of each Member State to establish procedural rules, whereby the requirements of equivalence and effectiveness must be met. An action for damages under national law is in principle required to assert a Union law right of claim. The above means that litigants of Dutch descent better invoke Article 6:162 BW (where appropriate, in conjunction with Article 6:166 BW) if they seek to enforce their right to claim damages.