In May 2011, CDC filed an action against four members of the Europe-wide sodium chlorate cartel in the Netherlands. Sodium chlorate is a bleaching agent mainly used in the pulp and paper industry.
By decision of 11 June 2008 (Case COMP/38.695 – Sodium Chlorate), the European Commission found that following companies participated from 1994 to 2000 in Europe-wide anticompetitive agreements and concerted practices on the market for sodium chlorate:
- Eka Chemicals AB/ Akzo Nobel NV
- Finnish Chemicals Oy (now Kemira Chemicals)/ Erikem Luxembourg SA
- Arkema France SA/ Elf Aquitaine SA
- Aragonesas Industrias y Energia SAU/ Uralita SA
In numerous meetings, the cartel members fixed 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. 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 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.
On 31 May 2011, CDC filed an action for damages against Akzo Nobel, Kemira Chemicals, EKA Chemicals and Arkema France before the District Court of Amsterdam. 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 for customers. Purchasers of sodium chlorate incurred damages for which the cartel members are jointly and severally liable. Interest as of the date when the damage occurred accrues on the claims.
On 4 June 2014, the District Court of Amsterdam confirmed its 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 is seated. The Court confirmed that this applies as well to companies such as Akzo Nobel whose subsidiaries 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.
Kemira Chemicals’ appeal against this judgment was dismissed on 21 July 2015 by the Amsterdam Court of Appeal. The Court applied the reasoning of the European Court of Justice in Case C-352/13 on jurisdiction clauses to arbitration clauses and thus held that they were not applicable.
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.
The proceedings continue against the sole remaining defendant Kemira Chemicals.
- CDC Press release of 10/06/2011 (EN)
- CDC Press release on Judgement in Sodium Chlorate case of 04/06/2014 (EN)
- Judgment of the District Court of Amsterdam of 04/06/2014 (NL)
- CDC translation of the Judgment of the Amsterdam District Court of 04/06/2014 (EN)
- Judgment of the Amsterdam Court of Appeal 21 July 2015 (NL)
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