This article is the first in a series on private enforcement in the Netherlands.
Over the past 10 years the Netherlands has established itself as one of the key jurisdictions for private damage actions in the field of competition law in the EU. Claimants have brought multiple follow-on actions, mainly relating to pan-European cartel cases, such as Gas-Insulated Switchgear, Bitumen, Air Cargo, Sodiumchlorat, Paraffinwachs, Elevators and Escalators, Prestressing Steel and recently LKW. The courts have issued several important judgments which provide increased legal certainty. Together with the timely implementation of the EU Damages Directive by the Dutch legislator the efficient and proactive judiciary is a key factor in fostering the Netherlands as an attractive forum for private enforcement actions.
Key features of the Dutch judicial system
What are the main reasons for the establishment of the Netherlands as one of the main jurisdictions for high profile competition damage actions in the EU?
Firstly, the Netherlands has an efficient and reliable judiciary system. This is evidenced by a recent survey of the World Justice Forum which has ranked the civil justice system of the Netherlands highest among 113 countries.
Secondly, the judges dealing with competition damage cases typically have practical experience with such cases. While there are no specialized courts, there are specialized judges dealing with competition damage actions across different courts. The judges often have a background in the field of private international and/or competition law. Also, the organization of the Dutch courts ensures that judges have sufficient resources and time to deal with such complex damage actions. Dutch courts and judges are also generally accustomed to pan-European and international cases and regularly apply foreign law.
Thirdly, the Dutch civil procedure is efficient and provides tools for the courts to streamline and proactively manage complex cases. Courts can for example issue interim judgments on important issues such as the international competence of the court, limitation periods and applicable law. Another element is the so called two stage procedure: Claimants can ask the court to first rule on the merits of a claim before entering the second stage on quantification.
Fourthly, the Dutch courts accept documents in electronic form. This is a significant advantage in proceedings such as competition damage actions where the volume of data and documents is often considerable. Parties may also submit documents in English, French and German.
Fifthly, the Netherlands has clear and predictable rules regarding court fees and adverse costs. The court fees in the Netherlands are very low, typically in the range of several hundred to several thousand Euros per instance. The amounts that must be reimbursed by the losing party would normally amount to approx. 10,000-20,000 EUR per party and instance, depending however on the number of procedural steps taken (both written and oral) throughout the proceedings. These rules ensure an effective access to justice.
The Netherlands Commercial Court
The attractiveness of the Netherlands as a forum for competition damage actions is further strengthened by the establishment of the Netherlands Commercial Court. This newly established court is competent for commercial disputes, including competition damage actions, under the condition that all parties to a dispute consent to its jurisdiction. The main feature of this court is that the proceedings will in principle be conducted entirely in English. In addition, the court also aims to have more effective and shorter proceedings. In this respect the Netherlands Commercial Court has for example established a novel paperless electronic filing system. The appointed judges all have long-standing experience in complex commercial disputes with an international angle. The court fees are compared to the ordinary Dutch courts higher, but still very accessible, in particular compared to courts in the UK or Germany. The fees amount to 15,000-20,000 EUR per party.
By Till Schreiber