On 12 May 2021, Amsterdam District Court rendered a decision in the first wave of truck cartel cases that will have pleased the claimants in particular.[1] Claimants in this first wave of cases include Carlsberg Deutschland GmbH, Stichting Trucks Cartel Compensation and CDC (Retail Cartel Damage Claims S.A.). In this judgment, the District Court:
- rejected the truck manufacturers’ position that the facts as set out in the decision of the European Commission (“Commission”) were not entirely binding on the cartelists. Also referring to the Otis judgment[2] of the CJEU, the District Court considered in this respect that it was bound “to limit itself to the two infringing acts established by the Commission in the operative part of the Decision, as the Claimants base their claim for damages due to unlawful act on that Decision.“[3];
- rejected the truck manufacturers’ defence that the collusive relationship of the truck manufacturers essentially only consisted of incidentally exchanging innocuous information about the increase of gross list prices and net prices, but that, besides that, there was no question of making agreements on this subject or implementing such agreements[4];
- rejected the truck manufacturers’ decision that leased trucks were excluded from the Commission’s decision[5];
- ruled that it follows from the expert opinion of Prof. J.E. Harrington Jr. and Prof. M.P. Schinkel, which was entered into evidence by the claimants, that artificial gross list price increases led to a net cartel surcharge on the net final prices paid by customers and that the report is conclusive and convincing;[6]
- thus rejecting the truck manufacturers’ defence that it is ruled out that the infringement established by the Commission resulted or could have resulted in damage to the customers. The District Court held that “this does not diminish the fact that it will still have to be assessed per Claimant whether the threshold for referral to the follow-up proceedings for the determination of damages has been met“[7]. For this, the possibility of damage must be made plausible.
In addition, the District Court referred the cases to a case management hearing of 27 May 2021, at which time the District Court will determine the next steps in this first wave of cases.
[1] Amsterdam District Court 12 May 2021, ECLI:NL:RBAMS:2021:2391.
[2] CJEU 6 November 2012, C-199/11 ECLI:EU:C:2012:684.
[3] Amsterdam District Court 12 May 2021, ECLI:NL:RBAMS:2021:2391, para. 3.13
[4] Paras. 3.19, 3.20
[5] Para. 3.28.
[6] Paras. 3.62, 3.63
[7] Paras. 3.68, 3.69
On 30 June 2021, Amsterdam District Court rendered an interlocutory judgment in the case between the foundation Data Privacy Stichting and Facebook.[1] The underlying dispute concerns the question of whether Facebook has violated the privacy of its users.
In this interlocutory judgment the District Court ruled on its jurisdiction, the admissibility of Data Privacy Stichting’s claim and the applicable law.
With regard to the jurisdiction of the District Court, the District Court assumed jurisdiction on various grounds. Firstly, Facebook has an establishment in the Netherlands (the “anchor defendant”) which performs relevant activities with regard to the revenue model (personalised advertisements) of Facebook. The claims against the various Facebook entities are therefore so closely connected that the District Court has jurisdiction to rule on all claims simultaneously (Article 8(1) Brussels I Regulation Recast). Secondly, the damage is suffered by the individuals represented by the foundation. This damage is suffered in the Netherlands. Based on “Erfolgsort”, the Dutch court therefore has jurisdiction to rule on this damage (Article 7(2) Brussels I Regulation Recast). Thirdly, the District Court ruled that it had jurisdiction based on the GDPR. Facebook has an establishment in the Netherlands and the individuals represented by the foundation reside in the Netherlands. Both facts are grounds for jurisdiction (Article 79 GDPR). Importantly, the District Court concluded that the rules on jurisdiction from the Brussels I Regulation Recast and the GDPR were not mutually exclusive.
Furthermore, regarding the admissibility of Data Privacy Stichting’s claim, the District Court ruled that the claimed unlawful activities are the same for all individuals represented by Data Privacy Stichting. The interests of all individuals can therefore be bundled. Furthermore, the fact that Data Privacy Stichting is an ad hoc foundation, funded by an American funder, is no obstacle. The independence and quality of the board of the foundation are guaranteed. Lastly, the GDPR (Article 80) forms no obstacle to representation of individuals on an opt-out basis.
As regards the applicable law, the District Court ruled that the GDPR (and its predecessor) were applicable, based on the Dutch establishment of Facebook. Regarding Dutch law on unlawful act, the Rome II Regulation establishes applicable law in the place where the damage occurs. As the individuals represented by the foundation suffer damage in the Netherlands, Dutch law applies.
[1] https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2021:3307.
Clara Wichmann (a foundation) et al. held the State liable for not compensating women for costs of contraception. On 2 June 2021, The Hague District Court[1], in a judgment that pertained solely to the admissibility of the case, appointed Wichmann as the exclusive representative.[2] The District Court ruled that the requirements of Article 3:305 DCC have been met because the foundation pursues a collective interest (an equal society for, inter alia, men and women) and an idealistic purpose without a claim for damages (so that the admissibility requirements from Article 3:305(2) DCC need not be met). The District Court already announced that it would declare the individual claimants not to have a cause of action in the final judgment, because they had lodged their claims (only) to declare their support.
[1] Interlocutory judgment The Hague District Court 2 June 2021, case number / cause-list number: C/09/588600 /HAZA 20-181.
[2] Incidentally, the case was unsuccessful for Clara Wichmann et al., as evidenced by the judgment of The Hague District Court of 6 October 2021.
On 19 May 2021, The Hague District Court rendered an interlocutory judgment in the case of two individual claimants and the Dutch Lawyers Committee for Human Rights, Amnesty International and Controle Alt Delete (“CAD“) against the State of the Netherlands.[1] The underlying dispute concerns the Royal Netherlands Marechaussee, which, according to the claimants, uses ethnic profiling when drafting risk profiles for the purpose of border control. The claimants claim, inter alia, that the use of risk profiles including ethnicity infringes the non-discrimination principle.
This interlocutory judgment pertains only to the admissibility of the claims and the appointment of the exclusive representative.
CAD was declared not to have a cause of action, because it does not have legal personality. Article 3:305a of the Dutch Civil Code (“DCC“) requires a claim vehicle to be a foundation or association.
With regard to the right of action of the other two organisations, the District Court noted that the claims are not aimed at obtaining compensation. Therefore, the requirements of Article 3:305a(6) DCC have been met. The remaining requirements of Article 3:305a DCC have also been met. The claims, for example, have a sufficiently close connection with the jurisdiction of Dutch courts, because the actions take place on Dutch territory.
Regarding the appointment of an exclusive representative, the District Court deemed Amnesty International to be the most suitable claimant to act as exclusive representative and therefore appointed Amnesty International in that capacity (within the meaning of Article 1019e DCC).
Lastly, with regard to the two individual claimants’ cause of action, they argued, inter alia, that their individual interest lies in questioning whether a fundamental human right to which they are entitled is being respected by the State. Therefore, the District Court found that these claimants had a sufficiently specific individual interest and therefore had a cause of action.
Following this ruling, the parties had to appear in court on 15 June 2021 for a hearing on the merits of the case.
[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBDHA-tussenvonnis-collectieve-vordering-de-Staat-der-Nederlanden-(Ministerie-van-Defensie-en-het-Ministerie-van-Justitie).pdf.
The Stichting Onderzoek Marktinformatie (“SOMI“) summoned Tiktok Technology Limited (“TikTok“) to appear before Amsterdam District Court on 15 September 2021 for the large-scale infringement of the privacy and consumer rights of 1 million Dutch children who use TikTok.[1]
SOMI wants to put an end to the unlawful conduct of TikTok. SOMI is claiming compensation on behalf of all these children, inter alia on the basis of the GDPR. The claimed compensation amounts to approximately € 1.4 billion in total.
[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBAMS-dagvaarding-collectieve-vordering-tiktok-technology-limited.pdf.
On 7 April 2021, Stichting Brein summoned Ziggo BV, XS4ALL Internet BV and KPN B.V. (the “providers“) to appear in court. The case follows from the judgment in preliminary relief proceedings of Midden-Nederland District Court of 8 October 2020, which led to the extension of the blockade of The Pirate Bay to the (sub)domains of mirrors and proxies through which The Pirate Bay is available. Through this summons, the blockade imposed on mirrors and proxies is now also sought in the proceedings on the merits.[1]
The providers had to appear before Midden-Nederland District Court on 6 October 2021
[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBMNE-dagvaarding-collectieve-vordering-stichting-brein-vs-Ziggo-XS4ALL-InternetBV-KPN.pdf.
The adoption of the Amendment of the member of the House of Representatives Van Gent resulted in the WAMCA not only applying to collective claims relating to events that occurred after 15 November 2016 (the date on which the initial bill of the WAMCA was presented to the House of Representatives), but also to events that occurred before that date, provided that they continued after that date.
In its summons in proceedings against Renault S.A.S., Stichting Emission Claim (the Foundation) asserted that the software updates that would remove the non-conformity of the vehicles equipped with fraudulent software took place after 15 November 2016. Furthermore, even after the updates, emissions from the engines did not remain below the limit under all circumstances. As a result, the Foundation argued, the obligation of the car manufacturers, importers and dealers to end the fraud in connection with the vehicles marketed in the Netherlands before 15 November 2016 continues to this day. With this summons, the Foundation is therefore seeking, briefly put, collective damages for the loss suffered by the injured parties of the diesel fraud committed by Renault and Bosch in the Netherlands and a number of declaratory judgments regarding the consequences of this diesel fraud under the WAMCA.
On 31 December 2020, Stichting BREIN summoned “X” to appear in court for their large-scale infringement. On 27 October 2017, X received a court order to stop offering hyperlinks to (infringing) television and film content (“IPTV packages“).[1] Despite a settlement agreement between X and Stichting BREIN, X continued to send IPTV packages via various websites.[2] Stichting BREIN claims infringement of copyright and neighbouring rights, requests a prohibition on offering infringing IPTV packages, requests X to provide information of the people involved in the infringing websites and requests X to pay a fine of € 100,000 for breach of contract.
X is to appear before Midden-Nederland District Court on 1 June 2022.
[1] Preliminary Relief Judge of Midden-Nederland District Court 27 October 2017, ECLI:NL:RBMNE:2017:5510 (BREIN/Moviestreamer).
[2] www.easyuse.tv; www.easy2use.tv; iptvkoning.tv; iptv4you.site123.me;
On 5 January 2021, the foundation Privacy First sued the State of the Netherlands regarding the UBO register. As of 27 September 2020 legal entities must register the personal data of their ultimate beneficial owners.[1] According to Privacy First, this register violates fundamental privacy rights of UBOs and access thereto should be disabled. No (published) decision has so far been rendered by the court.
[1] The writ of summons on behalf of Stichting Privacy First was published on 5 January 2021.
