NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
Additionally, collective actions are possible (see 6.2 Collective Action ). These claims are typically based on the tort action as outlined in Article 6:162 of the Dutch Civil Code. The threshold requirements for such an action include demon - strating a violation of the cartel prohibition, prov - ing that the plaintiff has suffered damages, and establishing a causal link between the violation and the damages incurred. Claimants can rely on decisions made by the ACM or the European Commission to substantiate the violation, as such a decision in a civil procedure constitutes irrefutable evidence of an infringement, thereby establishing the existence of a tort. Moreover, companies may invoke the nullity of an agreement to which they are a party, or argue that they are not obliged to comply with it, if they can demonstrate that the agreement violates the ban on cartels and leads to an appreciable restriction of competition. The forms of relief most commonly sought in the Netherlands include compensation for damages suffered and, in certain cases, the nullification of agreements that contravene competition laws. In private civil actions, the primary focus is on compensating the harm suffered by the claim - ant, whereas governmental proceedings aim to punish the violation and deter future infractions. 6.2 Collective Action In the Netherlands, there are several mechanisms available for claiming damages for violations of the cartel prohibition, making it a favourable jurisdiction for those seeking compensation. In addition to individual claims, collective actions are possible. These can be structured as either a single collective action or multiple separate collective actions against one or more cartel members. This is often achieved by consolidat - ing claims from various parties who believe they
have suffered damages into a claims vehicle, including through the assignment of claims. Furthermore, another mechanism for collective redress is the Dutch Act on Collective Settle - ment of Mass Damages ( Wet collectieve afwik- keling massaschade, orWCAM), which has been in effect since 2005. The WCAM proce - dure allows for a settlement agreement to be negotiated between companies involved in a cartel and a foundation or association repre - senting the affected parties. Once the settlement agreement is established, the parties can peti - tion the Amsterdam Court of Appeal to declare the settlement binding on all affected individuals. Injured parties retain the option to opt out of the settlement. Moreover, a collective action can be initiated against one or more cartel members based on the Dutch Act on the Settlement of Mass Dam - ages Claims in Collective Actions ( Wet afwikke- ling massaschade in collectieve actie, orWAM - CA). Effective from 1 January 2020, the WAMCA significantly broadens the scope of collective actions in the Netherlands by enabling repre - sentative organisations to initiate class actions. The WAMCA applies to events that occurred on or after 15 November 2016 and provides a structured approach to handling mass dam - age claims. This can be particularly beneficial in cases of cartel infringements where many par - ties, mainly consumers, have suffered smaller damages. An important feature of the WAMCA is the opt-out mechanism, which automatically includes all potential claimants in the collective action unless they choose to opt out, except for individuals who do not reside in the Netherlands, for whom an opt-in system applies. The collec - tive action must be initiated by an organisation – a foundation or association – with legal person - ality, representing the similar interests of other
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