In May 2011 CDC launched an action enforcing antitrust damage claims against four members of the EEA-wide sodium chlorate cartel in the Netherlands. Sodium chlorate is a bleaching agent mainly used in the manufacturing process of pulp & paper.
Background and Facts
In its decision of 11 June 2008 in Case COMP/38.695, the European Commission found that the following companies participated – at least from 1994 to 2000 – in EEA-wide anticompetitive agreements and concerted practices on the market for sodium chlorate:
In numerous meetings, the cartel members fixed target prices and monitored their implementation, allocated customers as well as market shares and exchanged commercially sensitive information. The cartelists pursued an overall strategy of artificially stabilising the sodium chlorate market. The ultimate aim of the infringers was “to coordinate the pricing policy towards the customers and thereby to maximise the margins”.
Three out of four groups of companies acknowledged their participation in the anti-competitive agreements and provided evidence to the Commission under the leniency programme. The European Commission imposed fines of more than € 79 million on the four groups of companies.
On 31 May 2011 CDC started legal proceedings at the court in Amsterdam against Akzo Nobel, Kemira Chemicals, EKA Chemicals and Arkema France.
Prior to the filing of the action, ten pulp and paper companies with a total of 27 production sites located in 9 European countries had sold their cartel-related damage claims resulting from sodium chlorate purchases to CDC. Together they account for almost half of the overall European demand for sodium chlorate.
Based on detailed transaction data collected from the damaged companies, CDC’s assessment in cooperation with external economic experts revealed that the cartel resulted in price overcharges for the customers of the cartel. As a consequence, sodium chlorate purchasers incurred significant damages for which the defendants are liable. Interest as of the date when the damage occurred, continues to accrue on these claims.
On 4 June 2014, the District Court in Amsterdam confirmed its jurisdiction to hear the case. In this key judgement the court held that all companies found to have participated in a cartel by the Commission can be sued together for damages at the seat of any one of the cartel members. According to the Amsterdam District Court this is also true for parent companies such as Akzo Nobel.
Furthermore, the Court rejected the argument that it lacked competence due to general jurisdiction and arbitration clauses contained in the terms and conditions of some supply contracts between the sellers and purchasers of Sodium Chlorate, in particular as the damage claims arose as a consequence of a clandestine market manipulation by all cartel members and not in relation to a contractual relationship.
Kemira Chemicals appealed the judgment of the District Court. On 21 July 2015 the Amsterdam Court of Appeal dismissed the appeal by Kemira Chemicals and confirmed the jurisdiction of Dutch courts to hear the damage action brought against members of the Sodium Chlorate Cartel. In particular, the Court of Appeal of Amsterdam applied the reasoning of the Court of Justice in Case C-352/13 to arbitration clauses and held that they were not applicable as a result of the clandestine nature of the cartel arrangements.
In 2013 CDC settled the case out of court with Arkema France. In 2015, prior to the appeal, CDC also reached an out of court settlement with Akzo Nobel. The court proceedings continue against the sole defendant Kemira Chemicals.
- Press release CDC of 10/06/2011
- Press Release Judgement Sodium Chlorate Cartel 04 June 2014
- Judgement of the District Court of Amsterdam 04 June 2014 (NL) (DE)
- CDC Translation of the Judgement of the District Court of Amsterdam 04 June 2014
- Judgement of the Amsterdam Court of Appeal 21 July 2015 (NL) (DE)