In May 2011, CDC filed an action against four members of the Europe-wide sodium chlorate cartel in the Courts of Amsterdam, the Netherlands. Sodium chlorate is a bleaching agent mainly used in the pulp and paper industry.
Background – European Sodium Chlorate Cartel
On 11 June 2008 the European Commission found that Eka Chemicals AB / Akzo Nobel NV, Finnish Chemicals Oy (now Kemira Chemicals)/ Erikem Luxembourg SA, Arkema France SA / Elf Aquitaine SA, and Aragonesas Industrias y Energia SAU/ Uralita SA had participated from 1994 to 2000 in Europe-wide anticompetitive agreements and concerted practices on the market for sodium chlorate.
In numerous meetings, the members of the sodium chlorate cartel fixed prices and monitored their implementation, allocated customers as well as market shares and exchanged commercially sensitive information. The cartelists pursued a strategy of artificially stabilising the sodium chlorate market. Their ultimate aim was, according to the Commission, ‘to coordinate the pricing policy towards the customers and thereby to maximise the margins’.
Three groups of companies acknowledged their participation in the sodium chlorate cartel and cooperated with the Commission under its leniency programme. The Commission imposed fines of more than EUR 79 million on all groups of companies.
CDC’s damage action
On 31 May 2011, CDC filed an action for damages against Akzo Nobel, EKA Chemicals, Kemira Chemicals, and Arkema France before the District Court of Amsterdam, the Netherlands. Previously, ten pulp and paper companies with a total of 27 production sites located in 9 European countries had sold their claims for damages resulting from the sodium chlorate cartel to CDC. They account for almost half of the overall European demand for sodium chlorate.
Based on detailed transaction data collected from the damaged companies, CDC revealed, together with its external economic experts, that the cartel resulted in significant price overcharges. Purchasers of sodium chlorate incurred damages for which the cartel members are jointly and severally liable. The total damage including interest claimed by CDC was over EUR 100 million.
On 4 June 2014, the District Court of Amsterdam confirmed its international competence to hear the case. In this landmark judgement the Court held that all companies found to have participated in the cartel by the Commission can be sued together at the place where one of them has its seat. The Court also confirmed that this applies to parent companies such as Akzo Nobel who was an addressee of the Commission fining decision and whose subsidiaries directly participated in the cartel meetings. It also rejected the argument that it lacked competence due to general jurisdiction and arbitration clauses allegedly agreed upon under some supply contracts on the purchase of sodium chlorate, because cartel damage claims are not related to a contractual relationship but result from the clandestine market manipulation by all cartel members. The Amsterdam Court of Appeal subsequently confirmed the first instance judgment by decision of 21 July 2015. On the merits, the Amsterdam District Court by judgment of 10 May 2017 confirmed the validity of the assignments but considered some claims as already time barred. Both CDC and Kemira Chemicals appealed the first instance judgment.
On 4 February 2020, the Amsterdam Court of Appeal in a landmark judgment ruled that the claims brought by CDC against Kemira Chemicals are not time-barred and confirmed the validity of the assignments. The judgment provides additional legal certainty in the field of private antitrust enforcement. CDC’s press release in relation to the Court of Appeal judgment can be found here. An English translation of the judgment is also available here.
As evident from press articles, press releases, annual reports and public statements by defendants, CDC has reached out-of-court settlements with Arkema France, Akzo Nobel and Eka Chemicals and has withdrawn the action against those companies.
The proceedings continue against the sole remaining defendant, Kemira Chemicals, and are currently pending before the District Court of Amsterdam.