On 14 July 2021, the Amsterdam District Court rendered judgment in Car Claim’s claim against Volkswagen et al., known popularly as ‘Dieselgate’.[1] In this class action, Car Claim represents the interests of car owners of the brands Volkswagen, Audi, Skoda and Seat that were put on the market between 2008 and September 2015 and which were fitted with emissions-cheating software.
Volkswagen et al. acknowledge that the original software featured various modes that are prohibited under the Emission Regulation. The District Court went on to answer the question of whether this also means that Volkswagen et al. acted unlawfully towards the car owners and whether the violated standard serves to protect the financial interests of the Car Owners.
The District Court ruled that the car manufacturers did indeed act unlawfully because they deliberately misled the regulator and the buyers of the cars by fitting the cars with cheating software, which is contrary to what is generally accepted according to unwritten law. The District Court issued a declaratory judgment stating that the car dealers sold cars that did not meet the buyers’ reasonable expectations as a result of the cheating software; the so-called non-conformity. After all, the buyer may expect the car to comply with the applicable regulations upon delivery. For that reason alone, a car that does not comply with said regulations is worth less than the purchase price, which is why the buyers are entitled to a price reduction from the car dealers. The importance of a simple and uniform settlement of damage, as intended by a class action, requires the District Court to determine what price reduction can be claimed. Because the defect is the same for each case, that amount may be the same for each car owner. The District Court set the price reduction for consumers who purchased a car from the car dealers involved in these proceedings at €3,000 for a new car and €1,500 for a second-hand car. Volkswagen et al. lodged an appeal against this District Court judgment.
[1] Amsterdam District Court 14 July 2021, ECLI:NL:RBAMS:2021:3617.
On 6 July 2021, the Amsterdam Court of Appeal rendered an interim judgment in the Air Cargo proceedings regarding the question of applicable law.[1] The proceedings were initiated by KLM, British Airways and Lufthansa and other airlines against the Dutch claim vehicles Equilib Netherlands B.V. and Stichting Cartel Compensation and concerned in particular the status of the cartel decision and the law applicable to the claims.
First of all, the Court of Appeal held that it could rely on the facts established by the European Commission in the cartel decision, even if an appeal is pending against this decision.
As far as applicable law is concerned, the Court of Appeal decided that Article 4 of the Unlawful Act (Conflict of Laws) Act (Wet conflictenrecht onrechtmatige daad “WCOD”) offers the relevant legal framework. The Court of Appeal found that, in principle, the law of the state of the airport of departure is applicable to each individual claim of each individual shipper per flight.
The Court of Appeal went on to note that this outcome would lead to a strong fragmentation of the applicable law. Strict application of Article 4 WCOD would lead to dozens of different applicable legal systems. In order to prevent this fragmentation, the Court of Appeal ruled first that the individual claims of each shipper must be considered as a whole, analogous to the concept of ‘a single continuous infringement’ as applied by the Commission in its cartel decision. Secondly, the Court of Appeal found that not only the airport of departure, but also the airport of arrival is relevant to the determination of the applicable law. The scope of Article 4 WCOD is not limited to the place where competition is directly harmed by the anti-competitive conduct, but also includes the place that has been affected indirectly (for example in case of umbrella damage).
As also confirmed by the Commission in its cartel decision,[2] the Aircargo cartel led to the restriction of competition in several places. The Court of Appeal ruled that, as a result, the claim of a single shipper is already governed by various applicable legal systems. The WCOD does not provide a solution for such a case. In order to fill this loophole in the legislation, the Court of Appeal found guidance in established (EU) principles, such as legal certainty and effectiveness. The Court of Appeal noted that the EU legislature provided for this issue in Article 6(3)(b) of Regulation (EC) No 864/2007 (also referred to as ‘Rome II’), in which the claimants are given the opportunity to choose the applicable law themselves under strict conditions.
Since the claimants in this case (Equilib and SCC) had requested the applicability of Dutch law, the Court of Appeal concluded that the claimants’ claims for damages are governed by Dutch law. This applies to claims relating to flights falling within the scope of the cartel decision (flights that have their departure and/or arrival within the EEA and Switzerland).
[1] Amsterdam Court of Appeal 6 July 2021, ECLI:NL:GHAMS:2021:1940.
[2] See the Commission’s press release of 17 March 2017: Antitrust: Commission re-adopts decision and fines air cargo carriers € 776 million for price-fixing cartel.
On 5 July 2021, the Gelderland District Court ruled on FNV’s claim against Wibra Supermarkten B.V.[1] (hereinafter: Wibra). Wibra had its employees make up for the fewer hours worked than stipulated in the CLA as a result of government measures in connection with the coronavirus pandemic. FNV considered the CLA provision applicable to these employees to be contrary to the law and sought an injunction against Wibra. Although Wibra had paid its staff members in full (in accordance with Article 7:628(1) of the Dutch Civil Code) without all hours being worked, it still placed the risk of being unable to work during the mandatory shop closure with the employees by recording the fewer hours worked, according to FNV.
The District Court ruled that the CLA was not contrary to the law because the employees were paid in full. FNV also argued that Wibra applied the CLA provision in a situation for which it is not intended and that Wibra had not acted in accordance with good employment practice. These arguments failed, too. FNV’s claim was denied; Wibra may demand that employees make up for the fewer hours worked caused by government measures. After the decision, Wibra voluntarily waived part of those hours.
[1] Gelderland District Court 5 July 2021, ECLI:NL:RBGEL:2021:3414
On 23 June 2021, the District Court of Rotterdam ruled in the case of claim vehicle Stichting Elevator Cartel Claim against the Dutch company Kone B.V. and the Finnish company Kone OYJ.[1] In this lift cartel damage case, the District Court had to assess whether the claims foundation to which some 40 public housing associations have assigned their claims had complied with its obligation to furnish facts regarding damage and causality. In doing so, the District Court ruled that in the case of specific indications that an agreement had been concluded between a public housing association and one or more cartel participants in the infringement period, it is plausible that the price paid was influenced by the lift cartel.
The District Court then assessed for each underlying party whether the foundation had made sufficient assertions to make the possibility of damage plausible. In this respect, it must always be proven that the party seeking damages contracted with or made payments to a cartel participant during the infringement period.
The District Court also held with regard to the passing-on defence that, in view of the point system to determine a reasonable (maximum) rent, it is not plausible that the injured parties passed on the additional price for the entire amount. In the end, the District Court concluded that all or part of the alleged damage had been made plausible for all underlying parties and that the case would therefore be referred (for that part) to the follow-up proceedings for the determination of damages.
[1] Rotterdam District Court 23 June 2021, CLI:NL:RBROT:2021:6636.
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 this quarter onwards, class actions in the broad sense of the term will take 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, Bas Braeken, Michelle Krekels, Sophie van Everdingen, Stefan Campmans, Nathan van der Raaij, Jacob van de Velde and Tessel Bossen
On 11 June 2021, Mlex reported on plans for a new post-Brexit cooperation agreement between antitrust investigators in the EU and the UK.[1] The plan is designed to bridge the post-Brexit gap created by the UK’s departure from an arrangement that allowed competition authorities across the whole of Europe to share sensitive information and coordinate enforcement activities.
It is clear from the draft guidelines that should serve as the basis for further negotiations that the EU is aiming for an agreement that goes beyond existing bilateral agreements, such as those with Switzerland, Japan and Canada.
For example, the bilateral agreement with the United Kingdom should enable the parties to ask each other to collect information or carry out inspections on behalf of the other, as well as letting them share the confidential information collected. In addition, the intention would be for the parties to alert each other at an early stage if an investigation could damage the other party’s interests. Finally, both parties could attend confidential hearings in Brussels when a particular investigation gets to that stage.
The details of the deal are still being discussed; it is hoped that agreement can be reached by the end of the year.
[1] Lewis Crofts, ‘EU eyes unprecedented antitrust cooperation deal with UK to bridge post-Brexit gaps’, Mlex 11 June 2021.
On 28 April 2021, Martijn Snoep, Chairman of the Netherlands Authority for Consumers and Markets (ACM), gave a speech at the GCE Conference Sustainability and Cooperation.[1] He argues that, in addition to government authorities, businesses and consumers, competition authorities must actively contribute to achieving the new European climate targets in order to prevent drastic climate change. In particular, a revision is needed of the Commission’s competition policy: a new interpretation of the fair share test.
The fair share test currently entails that anti-competitive arrangements between competitors are only permitted if consumers are fully compensated by the benefits that the agreements generate for them. On behalf of the ACM, Snoep argued for an exception to be made for agreements that lead to environmental benefits for the whole of society by the reduction of negative externalities. In other words, these agreements would meet the fair share test if the environmental benefits to society as a whole outweigh the negative effects to consumers. This requires companies to work together to achieve Europe’s climate goals. According to Snoep, the Commission’s current interpretation of the fair share test hinders such cooperation.
In response, the ACM has drawn up new sustainability guidelines. First, the ACM wanted to show how companies could cooperate to achieve sustainability goals without infringing competition rules. Second, the ACM told the business community that it was open to discussing with them their sustainability initiatives, that it was willing to give guidance, and that it would not impose any fines on companies that follow the guidelines in good faith. And third, the ACM’s aim was to show how the fair share test could be modified without opening the floodgates to all sorts of agreements aiming to achieve various public goals.
[1] Martijn Snoep, “Speech Duurzaamheid en samenwerking”, GCR Connect 28 April 2021.
As a result of agreements made in the German coalition agreement of 2018, the Bundeskartellamt, the German antitrust watchdog, has published guidelines that companies can adhere to when working together with others as a cooperative in order to prevent the cooperative from being regarded (after the fact) as a cartel.[1]
The guidelines provide explanation of the background, purpose and scope of the prohibition on cartels and the possible leeway for collaboration, for enterprises working (not only) as a cooperative, including on the basis of practical examples. The guidelines are also intended for small and medium-sized enterprises, which often do not have access to specialised legal advice.
[1] Bundeskartellamt press release, ‘Leitlinien zur Vereinbarkeit des Genossenschaftswesens mit dem Kartellrecht – Öffentliche Konsultation’, 4 May 2021.
On 17 June 2021, the Legal Affairs Committee of the European Parliament issued a Draft Report with recommendations to the European Commission on Responsible private funding of litigation.[1] The report also includes a proposal for a directive on responsible private funding of litigation. The Legal Affairs Committee proposes, amongst other things, to establish a system of authorisation for litigation funders to ensure that funding is only provided by entities that are committed to complying with minimum standards in terms of transparency, governance and capital adequacy.
[1] The Legal Affairs Committee, European Parliamentary Research Service, Responsible private funding of litigation. European added value assessment, 17 June 2021.
On 8 June 2021, various airlines went to court to reclaim interest on the fine they had wrongly paid. In 2010, the European Commission (EC) had imposed a fine on them for mutually discussing their prices, but this fine was reversed by the court in 2015.[1]
As the fine involved was €790 million, the interest will also be considerable. The steps reportedly taken by the airlines to recover this interest are in response to a ruling by the European Court of Justice in January 2021 that interest on wrongly paid fines must also be repaid.
[1] According to Mlex, ‘Cathay Pacific, SAS, Air Canada go to EU court over interest on annulled cargo-cartel fines’, 8 June 2021.
