On 29 December 2021, the Amsterdam District Court rendered judgment in the case of The Privacy Collective (hereinafter: TPC) v. Oracle and
Salesforce.[1] TPC asserts that Oracle and Salesforce collect the personal data of Internet users and sell this information to third parties to enable them to offer personalised ads, among other things. In addition, TPC asserts that Oracle violated the privacy of Dutch Internet users in a data breach. TPC is therefore seeking, among other things, damages in this class action suit. Rather than address the substance of the case in this judgment, the District Court assessed the admissibility of TPC’s claim.
All admissibility requirements of Article 3:305a DCC must be satisfied before a class action can be declared admissible. One of these requirements that the law imposes is the representativeness requirement. The requirement of representativeness prevents a foundation or association from instituting legal proceedings without the backing of a support base. It is up to the foundation or association to factually substantiate how many injured parties actually support the action in question and, accordingly, the scope of the claim it is representing. The court held that TPC had failed to do so. TPC acquired its support base by means of a system of “likes”; visitors to TPC’s website could express their support by clicking on a “like” button. The District Court held this to be insufficient for purposes of the representativeness requirement, in part because insufficient information was provided on the “like” page and no registration was kept of the data of the “likers”. The fact that TPC enjoys the support of privacy organisations does not automatically imply that it is sufficiently representative. TPC’s claim was declared inadmissible. TPC has since lodged an appeal.[2]
[1]Amsterdam District Court 29 December 2021, ECLI:NL:RBAMS:2021:7647
[2] On 28 April 2022, the CJEU handed down its judgement in the case of Meta Platforms Ireland (C-319/20). The judgment shows that collective actions ‘undoubtedly’ contribute to strengthening the rights of those involved. Therefore, strict (admissibility) requirements should not be imposed on interest groups. We will discuss this judgement in Q2022-2.
On 9 July 2021, the Procurator General of the Supreme Court of the Netherlands (“PG”) gave an advisory opinion in response to a judgment of the Court of Appeal of Amsterdam.[1] In short, the case in question concerns whether HP (a manufacturer and seller of printers and cartridges) acts unlawfully by installing so-called dynamic security software on its printers. This software blocks the use of non-HP cartridges.
The claimant is a foundation named ‘123inkt-huismerk klanten’ (the “Foundation”), which was founded by the directors of Digital Revolution B.V., a company selling printer cartridges blocked by HP’s software. The Foundation initiated a claim against HP on behalf of consumers who have bought these cartridges, demanding a ban on the use of the software in the HP printers. The Foundation opted to proceed via the assignment route, which involves the consumers assigning their claims to the Foundation. This meant that the Foundation acted as the formal litigant on behalf of these consumers.
Later in the proceedings, however, the Foundation tried to change its claim to one based on Article 3:305a Dutch Civil Code (“DCC”). In doing so, the Foundation tried to switch from being a formal litigant to a party by representation. According to the PG, a change in litigant status is in violation of due process. In line with the judgment of the Court of Appeal, the PG therefore concluded that the Foundation had no locus standi on the basis of Article 3:305a DCC.[2]
As to whether or not HP was acting unlawfully in using the software, the PG drew a distinction between printers sold before and after 1 December 2016. Regarding the printers sold before 1 December 2016, the PG concluded that the Foundation had no interest in banning the use of the software. This is because HP has removed the software from all these printers, meaning that non-HP cartridges are no longer blocked.
With regard to the printers manufactured after 1 December 2016, the PG concluded, in line with the Court of Appeal, that the use of the software was not necessarily unlawful. The PG argued that HP has a legitimate interest in the use of the software, i.e. to prevent the use of counterfeit cartridges and to avoid reputational damage and possible consumer claims. The PG considered it likely that consumers would attribute negative printer experiences (when using non-HP cartridges) to failure of the printer and thus to HP. Furthermore, HP informs all customers about the software installed in its printers and the consequences thereof. As such, the justification for the use of the software is that the customer has the choice of whether or not to purchase a printer with the dynamic security software built in.
Taking the PG’s conclusion into consideration, the Supreme Court ruled on 24 December 2021 that the complaints could not lead to the annulment of the Court of Appeal’s judgment (Article 81(1) of the Judicial Organisation Act).[3]
[1] Procurator General of the Supreme Court of the Netherlands 9 July 2021, ECLI:NL:PHR:2021:713
[2] Court of Appeal of Amsterdam 17 December 2019, ECLI:NL:GHAMS:2019:4502
[3] Supreme Court of the Netherlands 24 December 2021, ECLI:NL:HR:2021:1950
On 29 November 2021, the District Court of The Hague rendered judgment in a claim of two anonymised associations/foundations and one individual claimant v. the State and individual officials.[1] In preliminary relief proceedings, they sought the revocation of the marketing authorisations of BioNTech/Pfizer, Moderna, AstraZeneca and Janssen (developers of COVID vaccines). In these preliminary relief proceedings, the claimants envisage the immediate suspension of the vaccination campaign. They asserted that the recommendations of the Health Council of the Netherlands, in the context of which the State is informed about vaccinations, are unlawful. All three claimants were declared to have no locus standi. In the case of the foundation and the association, this was based on the exception of Article 3:305a(6) DCC.
The District Court ruled on the merits that the claimants’ claims in these preliminary relief proceedings were not directed against specific (COVID) measures of/decisions by the State. That circumstance alone implied that the claimants in these proceedings had no legally relevant interest in an assessment of the merits of the recommendations by the Health Council of the Netherlands. In addition, the District Court held that it is not the State but the European Commission that had the authority to revoke the marketing authorisation in question. Finally, an assessment of the merits of the recommendations would go far beyond the scope of a preliminary relief proceedings. Consequently, the claimants’ claims were denied. This decision was upheld on appeal.
[1]District Court of The Hague 29 November 2021, ECLI:NL:RBDHA:2021:12992
On 23 November 2021, the District Court of The Hague rendered judgment on the claim of two foundations and one association v. the State.[1] In these proceedings, the claimants sought an injunction prohibiting the State from allowing the export of (future) military goods and technology for the Egyptian State and/or the Egyptian navy. According to the claimants, Egypt violates human rights on a grand scale and the Egyptian Navy is an integral part of this regime. The (Dutch) State acted unlawfully by allowing and granting a permit for the export of these military goods to Egypt; there is a (highly) plausible risk that the proposed deliveries of military goods to the Egyptian Navy could contribute to or even be used directly in acts of domestic suppression, violations of fundamental human rights, violations of international (humanitarian) law and/or otherwise violate the obligations of the Netherlands under the Common Position and the Arms Trade Treaty.
One of the foundations was declared to have no locus standi because it failed to demonstrate that it meets the requirements of Article 3:305a DCC. The other claimants were however declared to have locus standi.
The District Court held that the claimants were unable to make a sufficiently plausible case that, given the current situation, the Minister could not have reasonably arrived at his decision to grant the current permits for the export of military goods to Egypt. The State monitors and takes all available information into account in the process of its decision-making. The State also made a plausible case that it carefully assesses the granting of permits. In addition, it was not asserted, nor is there any evidence, that other EU countries are currently declining to make similar deliveries to the Egyptian Navy. The claimants’ claims were therefore denied.
[1]District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12810
On 23 November 2021, the District Court of The Hague rendered judgment in preliminary relief proceedings against the State initiated by (i) an anonymised foundation and (ii) an individual claimant.[1] In a class action suit, the foundation is demanding that the corona measures as they applied until 25 September 2021 must again apply or instead that the State must require a negative test result of everyone (including those who have been vaccinated) for a COVID certificate. The State disputes the admissibility of the foundation’s claim. The foundation is asking the court to apply the exception of Article 3:305a(6) DCC, as a result of which less stringent admissibility requirements would apply.
The District Court concludes that the foundation has failed to appreciate that it must also comply with the requirements of paragraph 1 and the opening words of paragraph 2 if Article 3:305a(6) is applied. In this case, the persons represented by the foundation are so small in number that there is no question of the ‘representativeness’ required to be able to pass the admissibility threshold. In addition, it has not been sufficiently demonstrated how the claim relates to the foundation’s objective, as set out in its articles of association. The conclusion is therefore that the admissibility requirements of Article 3:305a DCC have not been satisfied. The foundation’s claim is therefore inadmissible.
The individual claimant’s claims are however admissible. Said claimant has asserted that the State is not complying with its duty of care. The court ruled that the State has great discretion in taking measures to combat COVID. Only if the State is obviously making incorrect choices is there room for judicial intervention. The Preliminary Relief Judge holds that the State made no obviously incorrect choices. In this case, the public interest – which forms the basis for the choices made by the State, with the State performing a complex weighing of all the interests at issue for the benefit of the entire population – clearly prevails over the claimant’s individual interest. The claims are therefore denied.
[1]District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12811
On 8 November 2021, the Amsterdam District Court rendered judgment on the claim against Royal Air Maroc of ANVR and individual travel agents who are members of IATA.[1] ANVR is an association whose members are individual companies in the travel field. Several Royal Air Maroc flights were cancelled on account of the COVID pandemic. Going against a European Commission recommendation, Royal Air Maroc informed passengers that compensation would be given exclusively in the form of vouchers. They are seeking, among other things, a declaratory judgment to the effect that Royal Air Maroc’s conduct is unlawful and that passengers are entitled to timely reimbursement. In these proceedings, ANVR represents its members and individual travellers who have granted it a power of attorney to act as their authorised representative.
ANVR’s claim on behalf of the individual claimants was declared inadmissible because the association had failed to submit copies of identity documents, as a result of which it could not be verified whether the authorisation forms were actually signed by the passengers in question. Accordingly, ANVR has insufficiently substantiated that it was authorised to lodge the claim on behalf of the individual passengers as well. ANVR’s claim on behalf of its members was declared admissible; they have a sufficient interest in having the claims upheld because they have suffered damages. This damage has been caused by the fact that Royal Air Maroc refuses to refund.. Among other things, the court issued a declaratory judgment to the effect that the policy observed by Royal Air Maroc with regard to vouchers and refunds is unlawful because it denies the passenger the choice between an alternative flight or reimbursement.
[1]District Court of Amsterdam 8 November 2021, ECLI:NL:RBAMS:2021:6461
On 19 October 2021, the summons in preliminary relief proceedings of International Air Transport Association (IATA) v. Airport Coordination Netherlands (ACNL) was entered into the central register for class actions.[1] IATA is an association of airlines that promotes the interests of the aviation industry and the interest of free and efficient aviation. It has committed itself worldwide to compliance with slot allocation regulations. ACNL is a legal entity under public law to which legal personality has been conferred pursuant to Article 8a.64(2) of the Aviation Act (Wet luchtvaart). It has implemented a new policy rule for the allocation of slots at the Dutch airports Schiphol, Eindhoven and Rotterdam-The Hague.
IATA wishes to prevent ACNL from interfering, without having the power to do so, by means of a policy rule (Policy Rule Additional Allocation Criteria), with the free choice of airlines to fly routes to and from Dutch airports. IATA asserts that the policy rule has a highly negative effect on the worldwide system of slot allocation (or at least the European part thereof). It is also against the law and unlawful vis-à-vis IATA and its members. This is because by doing so, ACNL is infringing on the division of powers ensuing from European regulations.
IATA therefore requests that the Preliminary Relief Judge prohibit ACNL from implementing the policy rule. It also argues that ACNL itself adopted this policy rule without having it assessed and approved by the European Commission.
[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBNHO-international-air-transport-association-vs-airport-coordination-netherlands.pdf
On 6 October 2021, the District Court of The Hague rendered judgment in the case of Clara Wichmann et al. v. the State regarding the provision of contraception free of charge.[1] Clara Wichmann et al. and the individual claimants in this case sought to have the District Court issue a declaratory judgment to the effect that the State was acting unlawfully by not reimbursing contraception for women over the age of 18. By extension, they demanded that the State reimburse contraception for these women going forward. They asserted that, as a part of sexual and reproductive rights, the right to access to contraception enjoys extensive protection and is embedded in human rights treaties, declarations and legislation. By not reimbursing contraception, women’s access to contraception is impeded in the Netherlands. In so far as access to contraception is in fact currently sufficient, this access is discriminatory in nature, as the financial burden is borne exclusively by women. This results in inequality between men and women, which is a violation of rules of a higher magnitude. The State disputed this, asserting that it was a political matter that called for a restrained assessment by the court.
The District Court held that the right of women to be free in making their sexual and reproductive choices merely implies that the government must make contraception accessible and affordable. It does not however imply that it must be provided free of charge. The same goes for Article 8 ECHR, Article 12 ICESCR and Article 12 of the UN Convention on the Elimination of all Forms of Discrimination Against Women. In addition, the District Court stated that although the current situation could result in inequality between men and women, this does not mean that such inequality is due to the State not reimbursing contraception. Finally, the District Court concluded that it was up to the legislature to respond to Clara Wichmann et al.’s and the individual claimants’ call to action.
[1]District Court of The Hague, 6 October 2021, ECLI:NL:RBDHA:2021:10737
Dear Reader,
We’re proud to present an entirely revamped Q Class Actions Update.
And if we may say so ourselves, we think it’s a great improvement.
Firstly, from halfway through 2021 onwards, class actions in the broad sense of the term have taken centre stage. Not least because class actions are a hot topic across the globe at the moment. Particularly so in the Netherlands, where, for example, numerous cases are being initiated pursuant to new legislation. We will monitor the resulting slew of case law for you. And of course, we’ll continue to focus on developments related to cartel damage.
Secondly, Q is now presented in website format, not only making it more of a pleasure to read but also enabling readers to consult it as a source of information. Many will find the easily-searchable database useful. We’re pleased to contribute in this way to further developments in the field of class actions.
Louis Berger & Hans Bousie
With contributions from Christiaan Alberdingk Thijm, Frank Peters, Michelle Krekels, Sophie van Everdingen, Stefan Campmans, Nathan van der Raaij, Jacob van de Velde and Tessel Bossen
EU cartel probes have tailed off in recent years as the European Commission sees fewer companies coming forward to expose price fixing in return for lower fines.[1] Maria Jaspers, who heads up the European Commission’s anti-cartel division, said that the Commission is “actively assessing” how to make the bloc’s whistleblower programme more “attractive” in light of market changes.
According to the head of Germany’s competition authority, Andreas Mundt, antitrust enforcers need to consider whether to give whistleblowers immunity from follow-on damages.[2] Cancelling the right of third parties to sue a leniency applicant for compensation was a “difficult question from a legal point of view”, Mundt noted. If that were to happen, the Commission would likely have to revisit an EU directive from 2014 that sets out how customers can sue for damages suffered at the hands of price fixers.
[1] Lewis Crofts and Nicholas Hirst, ‘EU’s whistleblower program may get tweaks to encourage cartel disclosures, senior official says’, MLex 22 September 2021.
[2] Nicholas Hirst and Tono Gil, ‘Cartel whistleblowers may need protection from damages actions, Bundeskartellamt chief says’, MLex 14 September 2021.
