On 16 February 2021, a ruling was rendered for the first time on appeal on the legal relationship between Dutch food delivery platform Deliveroo and its delivery persons.[1] The Court of Appeal, like the Subdistrict Court at first instance, decided that the delivery persons should not be considered self-employed but employees. With the exception of the freedom to perform work, all elements and circumstances point towards the existence of an employment agreement, according to the Court of Appeal. Deliveroo has filed an appeal in cassation against this decision.

[1] Amsterdam Court of Appeal 16 February 2021, ECLI:NL:GHAMS:2021:392.

On 20 February 2021, the District Court declared the class action lodged against the State by Stichting Pensioenbehoud en Katholieke Bond van Ouderen in Noord-Brabant to be admissible.[1] The State’s defence that the claimants do not have a cause of action and have insufficient interest within the meaning of Article 3:303 DCC had failed.

However, the District Court then went on to reject the claimants’ claims. The claimants asserted that Article 15 of Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (“Directive“) has been implemented incorrectly in Dutch legislation. The District Court ruled that there is no question of Article 15 of the Directive having been incorrectly implemented. The District Court also saw no reason to refer questions to the Supreme Court for a preliminary ruling.

[1]The Hague District Court 20 February 2021, ECLI:NL:RBDHA:2021:944, PJ 2021/37.

In the case against vagina.nl, three interlocutory judgments have so far been rendered. The first two of these have been discussed in Q4 2020. On 28 October 2020 the court ruled that Stop Online Shaming was to be appointed as the exclusive representative. Expertisebureau Online Kindermisbruik is also allowed to perform litigation actives, but only with regard to children. On 18 November 2020 the court proposed the manner in which the case would be announced. The court proposed 1) a text to be published in national newspapers and 2) a text on the Dutch case law website informing potential Dutch victims how to opt out and potential non-Dutch victims how to opt in. On 24 February 2021 the court published the final texts to be published. Interestingly, the defendant argued that the text should be as neutral as possible. The court agrees with this argument in principle, but considers that the text and headline should draw attention. Therefore, preference was given to a slightly less neutral text. The final text is published in the collective claims register. The judgments demonstrate the practical aspects of the opt-in/opt-out character of class actions and the manner in which the court deals with such aspects.

Diesel Emissions Justice Foundation (DEJF) litigates against Volkswagen et al. on behalf of persons affected by the diesel scandal. It is assisted by, among others, the firm that has written this quarterly report. In contrast to the situation under the old law, it is now possible under the new Settlement of Large-scale Losses or Damage (Class Actions) Act (Wet afwikkeling massaschade in collectieve actie, “WAMCA”) to claim damages and request that the decision hold for all persons in a ‘narrowly defined group’, unless they decide to opt out. Car Claim is litigating against Volkswagen in separate proceedings under the old law. Car Claim is claiming in these proceedings that it should first be allowed to join DEJF in its case and then to request that the District Court stay that case until Car Claim’s original action has reached its conclusion.

On 3 March 2021, the District Court dismissed Car Claim’s claims.[1] WAMCA allows ‘competing’ representatives to lodge their own claim under WAMCA within three months. Car Claim failed to do so and is trying to join the proceedings as a claimant by some other means. The District Court denied that request because it goes against the prudent system designed by the legislature for such situations. Even in the event that the request needed to be assessed on the basis of the old system, the District Court denied it, as Car Claim failed to demonstrate that it would be prejudiced by the outcome of the DEJF case. In all cases, it appears that Car Claim’s interests are served by DEJF’s claims being denied, which is another reason that it cannot be allowed to join the proceedings on the side of and in support of DEJF.

[1] Amsterdam District Court 3 March 2021, case / cause-list number: C/13/681 190/ HA ZA 20-299.

On 6 March 2021, Stichting Namaakbestrijding React, also known internationally as the Anti-Counterfeiting Network (“React Foundation”), summoned Contextlogic B.V. and Contextlogic Inc. (“Contextlogic”) to appear in court. React Foundation had initiated a class action (Article 3:305a Dutch Civil Code), representing the interests of rights holders against counterfeiting. Contextlogic manages the e-commerce platform Wish.com, which facilitates transactions between sellers and buyers.

React Foundation claims Contextlogic has infringed the intellectual property rights of its members, by advertising counterfeit goods on its Wish platform. Prior to the writ of summons, React Foundation had requested Contextlogic to provide personal data of the fraudulent advertisers. While Contextlogic responded by providing a list of details about advertisers, React Foundation found that this list had not been adequately verified and could not lead to identification of the advertisers. Particularly because 12 out of 13 infringers were located in China, additional information was needed to identify them.

In their writ of summons, React Foundation requested Contextlogic to provide payment information of the fraudulent advertisers as well as ID information from the infringers located in China. React Foundation argues that the current notice-and-takedown procedure is unsuccessful in keeping infringing content offline and that they therefore have a pressing interest in receiving identifying information.

Contextlogic was to appear before the Amsterdam District Court on 25 March 2021.

Pursuant to Article 3:305a DCC, Stichting Gin Schade filed claims against the backer of failed investments in Dutch hardwood. Like the District Court, the Amsterdam Court of Appeal ruled on 16 March 2021 that the foundation’s claims are inadmissible because it did not meet the requirements of Article 3:305a DCC at the time the proceedings were instituted.[1] In doing so, the Court of Appeal attached importance to the fact that the requirements of the Claim Code 2011 had not been met, nor, for that matter, the new requirements of the Claim Code 2019. An amendment to its articles of association in 2018 was of no avail to the claim foundation, because that would entail that it was acting in a different capacity. The claims instituted on the basis of a mandate were also disregarded, because these had become time-barred, as the letter of interruption pertained explicitly to collective claims instituted on the basis of Article 3:305a DCC.

[1] Amsterdam Court of Appeal 16 March 2021, ECLI:NL:GHAMS:2021:747.

Stichting BREIN, TALPA TV B.V. and RTL NEDERLAND B.V. summoned “A” (also known as “M”) and “B” (an individual whose identity is unknown so far) to appear in court. The defendants sell IPTV subscriptions via various websites and a physical store in Rotterdam. By doing so, defendants are infringing the intellectual property rights of Talpa and RTL, but also, for example, those of Walt Disney Company and Ziggo.

Stichting BREIN, being the exclusive representative, sought by way of preliminary relief – in short – access to all the relevant information in order to gather evidence against A and B. In the proceedings on the merit, Stichting BREIN sought, inter alia, a declaratory judgement, an order prohibiting further infringement and damages for Talpa and RTL.

A and B were to appear before the Rotterdam District Court on 14 April 2021.

Stichting BREIN brought an action against “X”, because X made a large number of works protected by copyright and neighbouring rights available to the public by uploading them on Usenet. Usenet is currently used primarily for the illegal distribution and downloading of entertainment content.

Stichting BREIN sought a declaratory judgement and an order prohibiting further infringement. X was to appear before the Gelderland District Court, Arnhem location, on 17 March 2021.

On 2 February 2021, the London High Court of Justice gave judgment regarding two procedural issues in the British Airways data breach case.[1] Firstly, the court ruled that the cut-off date (the date until which people can join the group litigation) was to be extended. A later cut-off date helps knowing the extent of the potential group and allows the claimants to benefit from advertising efforts. Secondly, the court ruled advertising costs to increase the class size would not be recoverable from British Airways.

[1] High Court of Justice 2 February 2021, [2021] EWHC 217 (QB), Case No. QB-2020-000208.

In a 27 January 2021 decision, Rotterdam District Court ruled that Shell, Total and Kuwait Petroleum were allowed to summon other participants in the Bitumen Cartel as third parties to the proceedings. This was in the context of the claim for damages brought against them by the State of the Netherlands. The third parties summoned are BP Europa SE, Wintershall AG, Nynas Belgium AB and SNV. In addition, Shell, Total and Kuwait had requested the District Court to allow them to summon other entities as third parties at a later stage, but the District Court denied this request. In a 13 September 2006 decision, these parties were fined by the European Commission for their participation in a cartel in which a total of eight suppliers of bitumen for road construction made arrangements on sale and purchase prices and on applying unequal conditions vis-à-vis trade partners.[1]

[1] Rotterdam District Court 27 January 2021, ECLI:NL:RBROT:2021:793.