Dutch Supreme Court Accepts Passing-On Defense In Private Enforcement Litigation

On 8 July 2016, the Dutch Supreme Court ("the Court") handed down a judgment upholding the availability of the passing-on defense in private enforcement litigation. The ruling resulted from a civil claim for damages brought by the electricity company TenneT against the gas-insulated switchgear ("GIS") manufacturer ABB.

In 2007, the European Commission imposed a fine on ABB for its participation in the GIS cartel. Following the Commission decision, TenneT brought an action for damages and claimed that due to ABB's participation in the cartel it had paid an overcharge on a GIS installation purchased from ABB during its participation in the cartel. ABB contended in response that TenneT had passed on the overcharge to its customers.