Private Enforcement of Antitrust Law in Belgium and the Netherlands – Is There a Race to Attract Antitrust Damages Actions?

Abstract

Since the Belgian and Dutch legal systems are relatively similar, one would expect similar levels of antitrust litigation. The data gathered for this article shows this is not the case.

In both countries, claimants and defendants alike regularly invoke antitrust law to obtain injunctive relief and to have contractual clauses declared null and void. But a striking difference exists for a specific type of antitrust litigation - follow-on damages actions. While the Dutch courts have become a hot spot for such actions, very few such actions have been brought in Belgium.

The article looks at possible explanations for this divergence. It argues that the boom in follow-on damages actions in the Netherlands can be explained by the receptive attitude of Dutch judges and lawyers to follow-on damages actions. The early judgments from Dutch courts were favourable to claimants and have attracted more damages actions. In turn, the large number of damages actions has led to the development of a claimants’ bar for antitrust actions and the proliferation of litigation funders. This developing litigation industry is in turn instrumental in bringing more damages actions before the Dutch courts, creating a virtuous circle for the Netherlands as forum.

These developments suggest that the Netherlands is competing with other jurisdictions to attract follow-on damages actions, just as it is competing for complex litigation in other areas.

Belgium, by contrast, is not engaged in the race to attract follow-on damages actions. Belgian courts have been less receptive to follow-on actions, probably because Belgian judges have a higher caseload than Dutch judges. In turn, the reason why judges in Belgium have a higher caseload is not because Belgium has fewer judges per capita than the Netherlands, but because civil and commercial litigation is far more frequent in Belgium. This represents something of a paradox: the Belgian courts are more accessible and attract more regular, run-of-the mill litigation but, precisely because of this, they are less receptive to new types of litigation such as follow-on damages actions, regardless of the benefits that these actions may bring to the economy.

Keywords: antitrust law, private enforcement, jurisdictional competition