The Netherlands as a Cartel Damages Hub and Private Law Enforcement Paradise?

Abstract

Private enforcement of competition law is organized under non-contractual liability (tort) law, which is structured very differently across EU Member States and differs substantially on various rules and aspects. Due to the differences in the substantive and procedural law of Member States, and also possibly the institutional structure of their court’s system, some national regimes have emerged which allow for a more attractive setting to claim damages as a result of a competition law infringement. Hence, the phenomenon of forum shopping is induced, in which regimes are specifically selected by claimants in order to generate the highest chance of damages compensation.

This master thesis sets out to discover what elements of the legal and judicial systems of the Netherlands, Germany and the United Kingdom lead to their repute as preferred countries for cartel damages actions in the literature. It scrutinizes the Netherlands in particular and examines to what extent the Dutch forum is, in reality, in line with the literature's claims. Hence, the main research question asked in this thesis is: To what extent is the Netherlands perceived as a preferred country for private enforcement of cartel damages claims in the EU and what elements of the Dutch legal and judicial system or other factors and incentives may influence and determine this preference?

To provide an answer to this research question, semi-structured qualitative interviews with collective redress organizations, practicing lawyers and an experienced judge have been conducted. These interviews formed an essential element of this thesis as they have provided the means to gather data from the practical field about the relevant factors that induce forum shopping in the Netherlands. From the interviews, it became apparent that the Netherlands is a preferred country for cartel damages actions and that the distinguished elements are mostly in line with the literature's view. The analysis of this thesis has shown that Netherlands’ preference is primarily influenced and determined by (1) its extensive regime for collective redress, (2) its low costs of litigation and limited financial risk, (3) the high number of companies in the Netherlands and the willingness of Dutch courts to adopt jurisdiction, (4) the experience, competence and quality of judges, (5) the role of lawyers, claim vehicles and litigation funders in bringing cases to Dutch courts, (6) the efficient and practical approach of Dutch courts, and (7) practical aspects such as submitting evidence electronically.