Clifford Chance

After the first instalment of this mini-series focused on postponement under English law, in this second instalment we consider interruption and extension of limitation periods under Dutch law in the context of group claims.

In the Netherlands, the number of group litigations has significantly increased over the years, in particular after the introduction of the Mass Damage Settlement Act in Collective Action (Wet Collectieve Afhandeling van Massaschade in Collectieve Actie or "WAMCA") in 2020. After a short introduction of the general rules on limitation in respect of damages claims, which also apply in collective actions, in this blogpost we examine the limitation regime in relation to claims arising out of competition law infringements and the interruption and extension of limitation periods, specifically the interplay between collective claims and corresponding individual claims.

1.  General rules on limitation of damages claims

The general rule on the statute of limitation (Article 3:310 Dutch Civil Code ("DCC")) prescribes that damages claims become time-barred (i) five years after the claimant becomes (or ought to have become) aware of both the damage and the liable party or (ii) in any event twenty years after the event took place that caused the damage.

2.  Claims arising out of competition law infringements

Within the EU, rules for the private enforcement of competition law are to a large extent harmonized on the basis of Directive 2014/104/EU. The Dutch legislature has implemented these rules in Articles 6:193s and 6:193t of the DCC, which also contains rules in relation to the question of whether a competition law infringement claim is time-barred.

For damages claims arising out of competition law infringements, Article 6:193s DCC provides that:

• the five-year limitation period starts to run the day after the infringement ended and the claimant became aware, or can reasonably be expected to have become aware, of (i) the infringement, (ii) the damage caused by it and (iii) the identity of the infringing party; and
• the 20 years limitation period starts to run the day after the day the infringement ended.

Notably, this differs slightly from the general rule in Article 3:310 DCC, because it requires knowledge of the three abovementioned elements, rather than only an awareness of the damage and the liable party. This raises the question of when a claimant is or can be reasonably expected to become aware of the circumstances giving rise to a claim based on infringement of competition law.

On 18 April 2024, the Court of Justice of the European Union ("CJEU") issued a preliminary ruling in the case of Heureka v. Google^[1], regarding the commencement of national limitation periods for competition law infringements.

The CJEU clarified that knowledge of the infringement, the damage caused by it and the identity of the infringer, is, in principle, obtained once the European Commission has published a summary of its decision in the Official Journal (thereby causing the limitation period to start running). The defendant can nonetheless still present evidence showing that the claimant had knowledge even before the summary of the decision was published in the Official Journal.

 3.  Interruption and extension of limitation periods

Under Dutch law, claims can be interrupted (stuiten) e.g. through a written communication in which the injured party reserves its right to claim damages (Article 3:316-318 DCC). Interruption results in the commencement of a new limitation period. These rules also apply to claims resulting from infringements of competition law.

For damages claims resulting from competition law infringements, claimants can, in addition to the general grounds for interruption and extension, rely on Article 6:193t DCC, which provides two grounds for extending the limitation period:

(1) out-of-court dispute resolution: the limitation period is extended for the duration of any out-of-court settlement negotiations, such as mediation and non-binding advisory procedures; and

(2) public authority investigations: the limitation period is extended for the duration of any investigation or proceedings by a competition authority, plus an additional year after the final decision or the conclusion of the proceedings.

Unlike an interruption, extension on these grounds occurs automatically by operation of law and no action is required from the injured party. Initiating a class action interrupts the statute of limitation for individual claims which correspond with the collective action, until the ruling in the collective action has become final and binding.

In a ruling of 27 September 2024, the Dutch Supreme Court^[2] confirmed that after a ruling in a collective action, a new limitation period (of the same length as the original limitation period) starts running for the claims of individual interested parties that correspond with the collective action. The Supreme Court ruled that for individual claims following a collective action, the statutory provision does not apply that after a negative ruling on a claim, the interruption of the statute of limitations is lifted if a new claim is not initiated within six months. On the other hand, individual claimants cannot rely on the twenty-year period that Dutch law allows for the enforcement of a ruling, since individual claimants cannot enforce a ruling in a collective action (to the extent such ruling can be enforced at all, given that in many cases they are declaratory rulings).

Next up, the United States.

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[1] Case No. C-605/21

[2] Dutch Supreme Court 27 September 2024, ECLI:NL:HR:2024:1311