Dutch Court Accepts ABB’s Passing-On Defence In Antitrust Damages Case

On 2 September 2014, the Arnhem-Leeuwarden Court of Appeal ("the Appeal Court") accepted a passing-on defence by the Swiss technology company ABB in a cartel damage case initiated by the Dutch network grid operator TenneT. TenneT claimed that it had incurred damages as a result of higher prices paid for ABB's cartelised gas-insulated switchgears. ABB successfully argued that any damage that TenneT might have suffered in the form of higher prices as a result of ABB's participation in the gas-insulated switchgears cartel was passed on by TenneT to its customers.

In 2008, the European Commission found that several undertakings, including ABB, had participated in a cartel in the gas-insulated switchgear market. The Commission's decision was not appealed by ABB, as it was granted full immunity from the fine imposed. Following the Commission's decision, TenneT brought a claim for damages amounting to € 29.7 million before a Dutch lower court which held ABB liable for the