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Simon Vande Walle

The Netherlands has seen a surge of antitrust damages actions in recent years. Together with the UK and Germany, it is often mentioned as a jurisdiction of choice for antitrust plaintiffs. Among the cases that have attracted particular attention are the cartel damages claims brought by special purpose vehicles, which purchase claims from the original victims and then bring them to court in a bundle. By contrast, in Belgium there have been many fewer damages actions. At first sight, this is surprising since the tort rules and rules of civil procedure in Belgium and the Netherlands show many similarities. By comparing the diverging developments in two jurisdictions that are relatively similar, this chapter seeks to identify some of the drivers of private antitrust litigation. What factors have enabled the proliferation of damages actions in the Netherlands and what is preventing a similar development from taking place in Belgium? In particular, the chapter explores whether the difference between Belgium and the Netherlands is explained only by legal factors (i.e. different rules of procedure or liability) or by additional socio-economic factors (e.g. the duration of proceedings, development of specialised lawyers). Finally, the chapter compares how Belgium and the Netherlands have implemented the Damages Directive. Due to the socio-economic factors identified in the chapter, it is unlikely that the Directive alone will ‘rebalance’ the number of antitrust damage actions between Belgium and the Netherlands.

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Simon Vande Walle and Tadashi Shiraishi