The Netherlands is a popular jurisdiction for competition litigation, and recent developments may also attract collective claimants to bring their claim in the Netherlands on behalf of a group of ‘victims’ of an infringement of competition law. Since 1 January 2020, the ‘Act on a Collective Action for Damages’ is in force.
The EU Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (No. 1215/2012) applies in The Netherlands. Pursuant to the Regulation, parties to a contract may include a choice of forum clause that refers their disputes to a specific court. This has the effect of excluding the jurisdiction of other courts that might have otherwise had international jurisdiction based on the jurisdiction rules of the regulation. Such a choice of forum may also apply to claims for infringement of competition law. Whether it does, is a matter of interpretation of the clause. That is a matter for the national courts. In CDC/Akzo, the European Court of Justice[1] found, however, that a choice of forum clause does only extend to legal relationships with regard to which it has been agreed. Surprises in that regard should be avoided. If the clause refers abstractly to all disputes that may arise from a contract, the court must assess whether it finds application to a legal relationships that the parties intended to cover with their choice of forum. This means for claims based on infringements of competition law that the court must assess whether it was reasonably foreseeable that the choice of forum would capture such claims when the parties consented to a choice of forum.
Choice of forum in the Netherlands
In the Netherlands, parties are free to include a choice of forum clause, possibly in the general terms and conditions of the contract that applies to disputes arising out of or in connection with a particular legal relationship. A Dutch court will determine whether the clause covers the claim in question, depending on the wording of the clause and other circumstances. Commonly used clauses read that all disputes relating to or following from the contract including this clause, will be referred to court X. Non-contractual claims may therefore fall within the scope of such clauses. Parties are free to include that claims based on competition law offences will be referred to court X.
Case law in the Netherlands
In 2015, the Amsterdam Court of Appeal found (with reference to CDC/Akzo) that the choice of forum clause in question did not include claims related to competition law infringements.[2] The clause generally (‘abstractly’) referred to disputes arising out of contractual relations, and therefore did not apply to a claim for damages following competition law infringements. More than a year later, the Rotterdam Court gave a similar decision.[3] It found that the choice of forum clause in question (which formed part of the general conditions) did not apply to a claim for damages for competition law infringements. Such claims are based on tort, whilst the general conditions governed the contractual relationship of a seller and a purchaser (and did not extend tort claims).
In its decision, the Amsterdam Court of Appeal
also ruled that there is no good reason for a different finding on arbitration
clauses. The applicability of arbitration clauses to disputes regarding competition
law infringements will equally depend on what both parties justifiably may have
expected at the time of concluding the arbitration clause.[4]
This analogous application of CDC/Akzo
is not necessarily followed elsewhere. German case law says for example that
arbitration clauses are generally not limited to contractual claims and that the
judgement of the European Court has no significance for the assessment of the
arbitration clauses.[5]
[1] European Court of Justice 21 May 2015, ECLI:EU:C:2015:335 (CDC).
[2] Dutch Court of Appeal Amsterdam 21 July 2015, ECLI:NL:GHAMS:2015:3006 (Kemira Chemical/CDC).
[3] Court Rotterdam 5 October 2016, ECLI:NL:RBROT:2016:7498.
[4] Court Rotterdam 25 June 2016, ECLI:NL:RBROT:2016:4164 (Stichting De Glazen Lift/Kone); In a recent case of the Rotterdam Court, which did not deal with competition law, the court confirmed this rule once again (Court Rotterdam 24 January 2019, ECLI:NL:RBROT:2019:538).
[5] District Court Dortmund 13 September 2017, 8 O 30/16 [Kart].
