The Netherlands is the only EU member state where a collective settlement of mass claims can be declared binding on an entire class on an opt-out basis. This makes the Netherlands an attractive venue for settling international mass claims, regardless of whether any (class action) litigation has taken place there. In addition, Dutch courts seem to assume jurisdiction quite easily and legal costs are capped, making it a popular country for international cartel claims. It is likely to remain this way until the European Commission introduces EU legislation on collective actions in antitrust, as well as on the protection of leniency programmes.

As most claims concerning antitrust damages result in out-of-court settlements or arbitration proceedings, few cases are known. However, it is clear that the number of cases brought before Dutch courts has increased significantly in the past five years. This trend is likely to continue. Damages actions are currently pending in the Netherlands against cartels in relation to paraffin wax, sodium chlorate, elevators, air cargo and switchgear. In the elevators case, Dutch organisation Stichting Meldpunt Collectief Onrecht filed a collective damages claim before the Rotterdam Court in December 2010 following the European Commission's decision in the cartel case (for futher details please see "European Commission seeks antitrust damages as private plaintiff"). Equilib, a subsidiary of Claims Funding International, filed a collective damages claim against Air France-KLM and Martinair before a Dutch court in September 2010 for the airlines' role in the air cargo cartel. More recently in the switchgear cartel, TenneT, operator of the Dutch electricity grid, has taken steps in the Netherlands to recoup losses following the commission's decision in the switchgear cartel case.

For more than two years now, the commission has been working on ways to facilitate damages claims at EU level. A draft directive on rules governing antitrust damages actions was quashed by a number of member states and certain members of the European Parliament in 2009. In February 2011 the commission launched a public consultation on an EU approach to collective redress, and in November 2011 Commissioner Almunia stated that the outcome of this consultation would be used to draft specific provisions on collective actions in antitrust. In addition, the commissioner intends to launch an EU initiative for damages actions before national courts, as well as in regard of the tension between public and private enforcement of the EU competition rules, which particularly revolves around access to evidence obtained in a leniency procedure in civil antitrust actions.

It appears that the Dutch Parliament does not want to wait for these EU initiatives: a motion was tabled in November 2011 requesting the government to draw up a plan for representative organisations to bring actions for damages by February 2012. Depending on how fast the commission works out its initiatives, the Netherlands will remain a 'claimants' paradise'.

For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected] or [email protected]).