District Court rules that a former director is liable for a cartel fine that was imposed by the EU Commission on the company
In a judgment of 23 September 2020, the District Court of Northern-Netherlands held a former director personally liable for actively or negligently allowing legal entities, of which he was board member, to participate in a cartel and orders payment of compensation of more than €13m to the company (of which the liability of several board members that participated in an out of court settlement would still need to be deducted).
The Court established that the director had participated as a member in a cartel that was fined by the EU Commission in a decision of 27 November 2013 (Case AT.39633 – Shrimps). The Court ruled that the director was not liable on the basis of tort (6:162 Dutch Civil Code), but on the basis of corporate directors’ liability rules (2:9 Dutch Civil Code), for allowing the company to participate in the cartel. According to the Court, the cartel fine would not have been imposed but for the conduct of the director. The Court, therefore, ruled that causality was proven and that the relevant companies are entitled to recoupment of the part of the cartel fine that covered the period in which the director was heading the companies (i.e. 48.05% of the total cartel fine of approx. €27m) increased by statutory interest.
This judgment is interesting for several reasons. First of all because a company was successful in recouping (part of) a cartel fine from its director. But also because the court ruled, inter alia, on (i) the required causality to establish a tort in these type of cases (personal liability), (ii) how to calculate compensation depending on the temporal participation in the cartel, (iii) the limitation period for statutory interest, and (iv) how to deal with a reduction of the claim due to an out of court settlement with jointly and severally liable third parties. This judgment is still open to appeal.