Litigating an antitrust damages action in the Netherlands - factors to consider
What are the key features to consider as a potential claimant or defendant in an antitrust damages action in the Netherlands? We outline reasons to litigate and reasons not to litigate in the Netherlands.
What are the key features to consider as a potential claimant or defendant in an antitrust damages action in The Netherlands?
Reasons to litigate in The Netherlands
- The Dutch rules of procedure allow efficient, inexpensive litigation eg through joinder, indemnification proceedings or intervention. Dutch Courts are becoming more and more familiar with antitrust damages cases. As per 1 January 2019, the District Court and Court of Appeal of Amsterdam allow for proceedings being conducted in the English language, if agreed upon by the parties. Lower Courts have the option to refer questions of law to the Dutch Supreme Court for a preliminary ruling.
- The concept of proportional liability has been accepted by the Dutch Supreme Court. As a result, litigating in The Netherlands could be useful in situations where there is uncertainty as to causality.
- The legal framework for collective redress is highly developed, among others through the Collective Mass Claims Settlement Act and implementation of the Damages Directive. Claimants can collectively initiate proceedings before the Dutch courts to establish the liability of a party (declaration) or obtain an injunction. New legislation is expected to enter into force soon which will enable collective actions also to be initiated for damages claims instead of just for a declaration or to obtain an injunction.
- Claimants funded by litigation funders have standing to initiate an action for damages and litigation funding is common practice in antitrust damages cases.
- A parent may be liable for the infringement and damage caused by its subsidiary.
Reasons not to litigate in the Netherlands
- Though the Netherlands is traditionally known to have efficient and relatively swift proceedings, antitrust damages cases can take several years to come to a close. Parties can chicane the proceedings through various procedural instruments which can delay proceedings considerably. As not many landmark decisions on antitrust damages claims have been rendered, parties are likely to subject their proceedings to appeal and appeal in cassation.
- By default, Dutch proceedings will be conducted in the Dutch language. This requires the use of translations and Court interpreters. However, parties may agree to subject their case to the Netherlands Commercial Court, a division of the Amsterdam District Court and Court of Appeal, allowing for proceedings to be conducted in the English language.
- There is currently no obligation for the Dutch courts to suspend damages proceedings pending the outcome of the investigations of the European Commission or the Authority for Consumers and Markets or pending the outcome of the appeals lodged against decisions of these bodies. Only under certain circumstances (such as a reasonable doubt as to the validity of a decision) do Courts suspend proceedings pending investigations or proceedings.
- Court ordered disclosure of evidence is possible, however generally not to the same extent as in common law systems. Pursuant to the implementation of the Damages Directive, Dutch procedural law provides for a framework providing for judge-directed disclosure in antitrust damages proceedings.
- Damages actions currently still need to be initiated by individual claimants, even though claimants can collectively obtain a ruling on liability (declaratory relief) and/or an injunction. However, this will likely change in the near future when new legislation enters into force.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.