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Claiming damages for harm caused by cartels has become easier

New European rules have made it easier for businesses and consumers to claim damages for harm caused to them by illegal cartel agreements. That is significant, also because it will put greater pressure on companies to refrain from colluding. Companies that do make illegal cartel agreements can be imposed fines by competition authorities, but can also expect damages actions filed by consumers and businesses.

Claiming damages becomes easier

With the implementation of European rules into Dutch law on February 10, 2017, it has become easier for Dutch businesses and consumers to claim damages for harm caused by cartels:

  • ACM decisions that are final can be used in antitrust damages actions as irrefutable evidence;
  • It also becomes easier to claim damages for harm caused by indirect price increases resulting from cartel agreements. This will particularly help consumers, when seeking to prove they have suffered harm;
  • If cartelists do not provide certain pieces of evidence themselves, ACM can, in some situations, provide that evidence instead. The new rules clearly explain what evidence can be provided, in what situations, and how businesses and consumers are able to do so.

How does it work?

If a business or a consumer has suffered harm (directly or indirectly) caused by an illegal cartel agreement between companies, they are able to go to court and claim damages. Consumers will usually do so as a collective. Businesses are able to start legal proceedings either individually or collectively, for example through a trade association or employers’ organization. Investigations and decisions of the European Commission and ACM are good starting points for claiming damages. Public enforcement by the European Commission and ACM, and private enforcement enhance each other. Both aim to put greater pressure on companies to compete fairly.