Relevant legislation in follow-on competitors circumstances. 3 Opinions of the AG on the Dutch Supreme court docket. On Rome II ratione temporis for steady torts; on task; and on ‘markets affected’. – Fin Serve

Three Opinions of Vlas AG on the Dutch Supreme Courtroom dated 5 April 2024 however revealed at this time focus on problems with relevant legislation in competitors follow-on circumstances. See additionally my earlier posts on Air Cargo and Palink. CJEU authority cited contains Concurrence, Nintendo, Tibor Trans, CDC, flyLAL.

ECLI:NL:PHR:2024:561 is the Palink case within the Truck Cartel: Uzdaroji Akcine Bendrove “Palink” et al v CNH Industrial NV et al

ECLI:NL:PHR:2024:370 issues the Air Cargo cartel: KLM et al v Stichting Cartel Compensation – SCC; and

ECLI:NL:PHR:2024:369 can be an Air Cargo case, ‘Equilib’: KLM et al v Equilib Netherlands B.V.

Within the Truck Cartel opinion which is a preliminary reference, the essence of the case is the impression of a single and steady infringement on the appliance of A6 Rome II. A primary difficulty is the date of software of Rome II: it applies (A31 juncto A32) to occasions giving rise to break which happen (the occasions, NOT the injury) after 11 January 2009. The cartel at difficulty ran between 1997 and 2011. (4.6) the appliance of Dutch residual lex causae guidelines for the pre 2009 interval and of the Rome II guidelines for the publish 2009 interval doesn’t serve Rome II’s quest for predictability. The fissure between pre and publish Rome II’s software ratione temporis within the case of a steady tort just isn’t solved by CJEU Homawoo as referenced ia in CJEU Nikiforidis. 

Vlas AG 4.8 cites Mankowski

The second remaining difficulty is whether or not the Rome II Regulation applies the place a steady tort was at stake, i.e. the place a multiplicity of occasions giving rise to the injury have occurred, some earlier than and a few after 11 January 2009. There’s a plethora of conceivable options: First, the final causal occasion issues. One would run into extreme bother in figuring out which occasion is the final. Second, the primary causal occasion issues. Third, probably the most related causal occasion issues. Fourth, all causal occasions are handled as equal, and it disqualifies for the needs of making use of the Rome II Regulation that certainly one of them occurred earlier than 11 January 2009. Fifth, all causal occasions are handled as equal, and it suffices for the appliance of the Rome II Regulation that certainly one of them occurred on or after 11 January 2009.

If one is ready to undertake as a normal coverage that the Rome II Regulation and its uniform guidelines must be utilized to the widest attainable extent, the fifth strategy should be most well-liked.

and Fitchen (4.10)

(…) accordingly, for a few years to come back it could be that the relevant legislation in cross-border competitors legislation claims introduced after 11 January 2009 will nonetheless be wholly or partially ruled by pre-Rome II strategies of figuring out the relevant legislation. As such an consequence doesn’t seem to accord with the overall coverage of accelerating authorized certainty within the context of cross-border claims, it’s value contemplating whether or not, within the circumstance that an infringement of competitors legislation is alleged to be ongoing each earlier than and after the temporal datum level of Rome II, it’s unsuitable to separate the ascertainment of the relevant legislation. Presumably the truth that the injury inflicting occasions of the competitors legislation tort proceed previous the Rome II datum level ought to trigger the alleged tort to be considered occurring constantly and to due to this fact official the appliance of the Rome II Regulation to find out the relevant legislation for your entire declare? Although growing authorized certainty and simplifying the selection of legislation course of for cross-border competitors legislation claims, this suggestion has to take care of the principled objection that it could be an unfair departure from the overall stance of Rome II of neutrality between claimant and defendant. This objection is probably much less convincing within the particular context of follow-on competitors legislation claims as right here the existence of an anti-competitive act is already established: in these circumstances such neutrality could also be argued to perversely favour the wrongdoer. Issues of precept apart, probably the most formidable impediment to any suggestion that competitors claims which straddle the temporal datum level ought to profit from a single methodology of relevant legislation choice is Rome II itself: the textual content at present lacks any provision supporting retrospective temporal applicability whether or not speedy or deferred in time.

It’s instructed {that a} case based mostly upon growing authorized certainty might be made for a legislative modification to deal with the issue of an absence of transitional provisions in regards to the temporal applicability in Rome II for follow-on competitors claims both by permitting a deferred type of retrospective temporal applicability after the effluxion of a sure time period from 11 January 2009, or, by offering follow-on competitors claims with a brand new particular regime which incorporates non-public worldwide legislation measures extra applicable to this particular kind of competitors declare.

Vlas AG then himself opposes the fissure or ‘break up’ (4.11), citing predictability and authorized certainty. Nonetheless not like Mankowski he doesn’t suggest that writer’s ‘fifth answer’ per above, moderately, (4.13) he suggests the residual guidelines ought to apply seeing as the continual occasion began pre Rome II’s ratione temporis scope. This he argues will serve predictability and unity of lex causae, albeit he concedes that unity will likely be achieved on the nationwide versus the EU stage. The overall absence of retroactive impact of EU PRivIL guidelines is cited, justifiably IMO, in assist.

(4.14) he argues in opposition to referral to the CJEU, not as a result of the difficulty is acte clair, moderately as a result of in his view below the Dutch residual guidelines, too, claimants might make selection of legislation for the lex fori, simply as they will below A6(3) RII. In different phrases he doesn’t suppose there may be an curiosity in requesting the view from the CJEU.

The AG then additional discusses the train by claimants below A6(3) Rome II (and the residual Dutch guidelines), opining that it needn’t be the claimant whose pursuits have been affected in numerous nations, simply so long as markets have been affected in numerous nations. He additionally sees no purpose (and I agree; the AG makes use of ia linguistic comparability) that this must be any totally different the place the claims have been acquired by litigation autos.

Within the air cargo cartel SCC and Equilib circumstances, that are an software for annulment, Rome II doesn’t characteristic ratione temporis nonetheless in accordance with Dutch authority, A6 Rome II is used professional inspiratio. Right here the dedication of ‘markets affected’ is a matter. With regards to the travaux and all kinds of scholarship, the AG suggests ‘the legislation of the state on whose market the sufferer was affected by the anti-competitive observe’ should be the lex causae, resulting in Mozaik in fact, with then the next dialogue of A6(3)b. In each circumstances, the AG proposes that the judgment appealed be annulled on the difficulty of validity of task.

Others little doubt can have extra evaluation. These are extremely related opinions.


EU Personal Worldwide Legislation, 4th ed. 2024, 4.53 ff.



Leave a Comment