NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
6.4 Evidence Obtained From Governmental Investigations/ Proceedings
parties. The parties whose interests are repre - sented must be described as a precisely defined group with similar interests. In this context, the WAMCA has introduced strict requirements on the admissibility of the representative organi - sation, such as representativeness, expertise, governance and funding. In cases where two or more organisations initiate a collective action under the WAMCA, the proceedings will be treated as one case, and only one organisation will be appointed by the court as the exclusive representative, becoming, in principle, the only party to perform procedural acts. Organisations not designated as exclusive representatives remain parties to the proceedings. If the nature of the collective claim, the claimants or the inter - ests of the persons they represent warrant it, the court may choose to appoint different exclusive representatives in a collective action. 6.3 Indirect Purchasers and “Passing On” Defences Passing-on defences are addressed within the framework of Dutch civil law. Following the implementation of EU Directive 2014/104/EU, the Dutch Civil Code allows defendants to argue that the injured party has passed on the dam - age caused by a competition law violation. This passing-on defence has been raised in courts before and accepted by the Supreme Court. Generally, the claimant bears the burden of proof regarding the amount of the claimed damages. Indirect purchasers can claim damages if they can demonstrate that they have suffered harm due to the cartel, typically by showing that an overcharge was passed on to them. The burden of proof in such cases lies with the indirect pur - chaser. The process for hearing and resolving these claims follows the same procedures as any other civil litigation in the Netherlands.
If a previous cartel investigation concerning the same facts has been performed by the ACM (or the European Commission), evidence derived from the previous investigation, such as an enforcement decision, is admissible as evidence in the subsequent investigation. 6.5 Frequency of Completion of Litigation The time taken from the initiation of a claim to its resolution can vary greatly depending on fac - tors such as the complexity of the case and the number of parties involved. Cartel damages pro - ceedings can extend over several years before a judgment is rendered or a settlement is reached. At present, the number of cases that have been fully litigated or settled is too small to draw sta - tistically significant conclusions. 6.6 Attorneys’ Fees In civil law cases, successful claimants are entitled to compensation of procedural costs (including attorneys’ fees, court fees, costs related to obtaining and preserving evidence, witness fees). However, the actual amount is determined via a points-based system, which will depend on the type of case. In general, and in cartel cases, the awarding of compensation of procedural costs will generally cover only a small
part of those costs. 6.7 Costs/Fees See 6.6 Attorneys’ Fees . 6.8 Judicial Review or Appeal
Judgments rendered by Dutch District Courts (courts of first instance) can be appealed to a Court of Appeal. Typically, Courts of Appeal conduct a comprehensive review of the case,
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