No Proven Price Effect, No Damages in Ethylene Cartel Claims
In Short
The Situation: October 2, 2026—Two landmark rulings in the first follow-on damages proceedings concerning the ethylene cartel
The Result: On July 29, 2026, the Amsterdam District Court ("the Court") dismissed two follow-on damages actions arising from the European Commission ("EC")'s 2020 ethylene purchasing cartel decision, holding that the claimants had not established that the conduct had caused them loss.
Looking Ahead: The rulings underscore the distinction between the infringement established by the EC and the separate proof required in a follow-on damages action. An infringement decision establishes the competition law breach, but claimants must still show, with supporting evidence, that the conduct affected prices, caused the alleged loss, and resulted in quantifiable damage.
Background
On July 14, 2020, the EC found that a number of ethylene purchasers participated in a purchasing cartel from 2011 to 2017. The alleged conduct involved: (i) bilateral exchanges of commercially sensitive and pricing information; and (ii) coordination of the Monthly Contract Price ("MCP"), a reference price in ethylene supply contracts in Northwest Europe. Under EU competition law, exchanging commercially sensitive information is a by-object restriction. The EC therefore did not need to demonstrate that the conduct produced anti-competitive effects to establish the infringement; that question remained to be assessed in the follow-on damages actions.
Following the EC's decision, ethylene suppliers brought damages claims in several jurisdictions, including in the Netherlands, alleging that the MCP had been artificially depressed or distorted and that they had consequently received too little for the ethylene they sold.
The Amsterdam District Court's dismissals
In both of the follow-on damages claims at issue, the court held a series of oral hearings in which both sides presented expert economic evidence concerning the alleged damage. The EC had not assessed whether, or to what extent, the cartel affected prices on the market or caused loss. The court therefore needed to analyze the alleged price effect, the causal link to the claimants' loss, and the resulting damage.
In one of the proceedings, the court expressly held that the claimants' expert reports could not support the damages calculation because the comparator markets were insufficiently comparable and the method used and its results were not reliable. Across the two judgments, the court also relied on several factual and economic considerations that made an actual impact on the MCP insufficiently plausible. First, the court questioned why the claimants, with specialized analysts and in-depth market knowledge, had not identified an undervalued or systematically reduced MCP. Second, it found that ethylene suppliers had plenty of alternative customers. Third, it observed that ethylene suppliers' margins increased during the infringement period.
On these grounds, the Amsterdam District Court ruled that the claimants had not established that the conduct influenced the MCP or caused them to receive too little for the ethylene they sold.
Even assuming that the rebuttable presumption of harm under Article 17(2) of the Damages Directive and Article 6:193l BW applied, claimants still had to substantiate the causal mechanism, actual MCP impact and resulting damage. The court found that they had not done so in these cases.
While several lawsuits still remain in play, the Amsterdam court's decisions illustrate that follow-on actions are full proceedings on the merits, in which claimants must establish the relevant price effect, causation and damage, and defendants have the opportunity to challenge those elements.
Four Key Takeaways
1. An EC infringement decision is binding evidence of the infringement, but does not by itself establish a price effect, causation, or damage.
2. Economic evidence put forward in damages claims faces close judicial scrutiny when the court assesses price effect, causation, and resulting damage.
3. Companies considering a claim for damages must gather detailed evidence not only regarding the existence of the infringement, but also its effect on pricing, the causal link to their loss, and the amount of damage.
4. Cartel defendants facing follow-on claims can challenge the alleged influence on price setting and advance alternative explanations for pricing developments.
