In its landmark decision Courage/Crehan (2001) the European Court of Justice (ECJ) declared that all parties that suffer damages as a result of an infringement of European competition law are entitled to compensation, and that such claims should be brought before national courts. For a long time such cartel damages proceedings did not occur in the member states. In 2010, BarentsKrans brought proceedings against the Air Cargo cartel, which is the largest European cartel case to date. Since then, the cartel damages team at BarentsKrans has also been acting for claimants in paraffin wax, sodium chlorate, elevators and other high profile matters. These cases have allowed Dutch courts to develop a solid doctrine in respect of various critical issues in cartel damages litigation. The pragmatic and responsive approach of the Dutch courts in this area is one of the key factors why the Netherlands has established itself as a leading jurisdiction for private enforcement of competition law.
Parties suffering damages as a result of a cartel often do not want to sue for compensation. The lack of information in respect of the cartel conduct, the costs involved in litigation, and the uncertainties about the level of damages tend to discourage legal action. That is why cartel members used to assume that private enforcement would not pose a real threat. That is no longer the case.
The key lies in the level of organization on the side of the injured parties. Claims funders with experience and know-how in private enforcement offer injured parties the opportunity to assign their claims to a special purpose vehicle that will act as claimant in the litigation. The case will be funded and managed by the claims funder, who will instruct counsel and economic experts. In case of success, the injured parties will receive compensation on their claims minus a percentage for the funder. Bundling the claims this way renders the proceedings more efficient and also increases leverage for settlement purposes. The assignment model has been approved in Dutch litigation and is also endorsed by the cartel damages directive that is to be implemented in EU member states later this year.
Members of the cartel damages team at BarentsKrans are recognized as leaders in this area, i.e. by Chambers & Partners, Legal500 and Global Competition Review. They are regular speakers at seminars in Europe and the United States, and publish frequently on new developments in cartel litigation. They also act for clients that seek to obtain compensation on a stand-alone basis, in- and outside the Dutch courts, and have ample experience in settling these matters.