Relevant regulation 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’. Defend Cyber

Three Opinions of Vlas AG on the Dutch Supreme Courtroom dated 5 April 2024 however revealed right this moment focus on problems with relevant regulation in competitors follow-on circumstances. See additionally my earlier posts on Air Cargo and Palink. CJEU authority cited consists of 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 also 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 affect of a single and steady infringement on the appliance of A6 Rome II. A primary situation is the date of utility of Rome II: it applies (A31 juncto A32) to occasions giving rise to break which happen (the occasions, NOT the harm) after 11 January 2009. The cartel at situation 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 utility ratione temporis within the case of a steady tort is just not solved by CJEU Homawoo as referenced ia in CJEU Nikiforidis. 

Vlas AG 4.8 cites Mankowski

The second remaining situation 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 harm 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 hassle in figuring out which occasion is the final. Second, the primary causal occasion issues. Third, essentially 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 one in every 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 one in every 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 ought to be utilized to the widest attainable extent, the fifth strategy must be most popular.

and Fitchen (4.10)

(…) accordingly, for a few years to come back it could be that the relevant regulation in cross-border competitors regulation claims introduced after 11 January 2009 will nonetheless be wholly or partially ruled by pre-Rome II strategies of figuring out the relevant regulation. As such an end result doesn’t seem to accord with the final coverage of accelerating authorized certainty within the context of cross-border claims, it’s price contemplating whether or not, within the circumstance that an infringement of competitors regulation is alleged to be ongoing each earlier than and after the temporal datum level of Rome II, it’s improper to separate the ascertainment of the relevant regulation. Probably the truth that the harm inflicting occasions of the competitors regulation tort proceed previous the Rome II datum level ought to trigger the alleged tort to be considered occurring repeatedly and to subsequently authentic the appliance of the Rome II Regulation to find out the relevant regulation for the complete declare? Although rising authorized certainty and simplifying the selection of regulation course of for cross-border competitors regulation claims, this suggestion has to deal with the principled objection that it will be an unfair departure from the final 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 regulation 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, essentially 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 regulation choice is Rome II itself: the textual content at the moment lacks any provision supporting retrospective temporal applicability whether or not instant or deferred in time.

It’s advised {that a} case primarily based upon rising authorized certainty will 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 personal worldwide regulation measures extra applicable to this particular sort 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, slightly, (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 can be achieved on the nationwide versus the EU stage. The final 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 problem is acte clair, slightly as a result of in his view below the Dutch residual guidelines, too, claimants might make alternative of regulation for the lex fori, simply as they’ll below A6(3) RII. In different phrases he doesn’t suppose there’s 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 varied nations, simply so long as markets have been affected in varied nations. He additionally sees no motive (and I agree; the AG makes use of ia linguistic comparability) that this ought to be any totally different the place the claims have been acquired by litigation automobiles.

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

Others little question could have extra evaluation. These are extremely related opinions.


EU Non-public Worldwide Regulation, 4th ed. 2024, 4.53 ff.



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