On 23 February 2022, the Amsterdam District Court ruled that a foundation as claimant cannot act simultaneously as mandatary and as representative within the meaning of Article 3:305a DCC.[1] In this case, Stichting Bouwfonds Claim is seeking a declaratory judgment entailing that Bouwfonds Fund Management B.V. made misleading statements in its advertising brochure and prospectus and that Bouwfonds must compensate these damages for that reason. In this case, the Foundation acts both as a collective representative within the meaning of Article 3:305a DCC and as mandatary. The District Court finds that this means that in its actions as a 305a foundation, the Foundation is both the litigant and the litigant with a legal interest that promotes the collective interest of the collective investors. Since the Foundation is, as mandatary, exclusively the litigant that promotes the individual interests, this leads to a number of problematic relationships.
First, for example, a claim lodged by the Foundation as 305a foundation has interrupting effect with regard to the prescription of the claims of the collective. A claim that it lodges as mandatary only has interrupting effect with regard to the prescription of the claims of the mandators it represents at that time. In addition, the basis for the damages becomes complex in a situation in which the Foundation, in its capacity as 305a foundation, is subject to a statutory prohibition against seeking damages, while it can indeed claim damages in its capacity as mandatary. The District Court therefore concludes that the Foundation cannot, as one and the same claimant, act simultaneously as both mandatary and as 305a foundation. The Foundation’s claim is therefore declared inadmissible.
On 16 February 2022, the District Court of Amsterdam ruled in a case between the foundation Stop Online Shaming (the “Foundation”) and a pornography website called vagina.nl (the “website”), which shows graphic content of persons who are not aware of this and have not consented to this.[1]
The case concerns the question of whether the website is liable for the unlawful content published by users on the website. In this case, the Foundation acts as the exclusive representative for the alleged victims of unlawful content (persons who appear in the content without their explicit consent).
The District Court opens its decision with the conclusion that the exemption from platform liability does not apply. According to Article 6:196c of the Dutch Civil Code (and the e-Commerce Directive), this exemption does not apply when the platform knows or should reasonably know that the information published is unlawful. If the platform actively intervenes – i.e. by preselecting the content – the platform is considered to have knowledge of the content and the liability exception does not apply. According to the District Court, the explanation given by the website at the hearing shows that the website does preselect content. A video of a forest that the Foundation tried to upload was not published by the website. According to the District Court, this too shows that the website preselects content.
Subsequently, the District Court rules on the question of whether the website acted unlawfully. According to the District Court, it is unlawful to publish content on an adult website if that content shows recognisable persons who are (completely or partly) naked and that content has been secretly filmed in places where these persons thought they were unobserved. Furthermore, it is unlawful to publish content on these websites that is not professionally produced and shows recognisable persons performing sexual acts in private, unless those persons consent to the publication of the content. Vagina.nl is therefore ordered to remove all unlawful content and pay damages to the victims.
In the Netherlands, the proceedings relating to the truck cartel, in which DAF, Daimler, Iveco, MAN, Volvo/Renault and Scania were summoned, are being conducted in groups because of the large number of bundled cases. On 16 February 2022, the District Court determined the scope of the third group of cases and that, in addition to the three existing groups, a fourth group of cases would be compiled. The first case management hearing for the fourth group is scheduled for 31 May 2022. This fourth group includes claimants Musgrave, DCC, unilegion Truck Claims Stichting, Colgate Palmolive SARL, Capelton B.V. and Diageo GmbH. AB InBev Group and FedEx may also join these proceedings. In total, 67 bundled cases relating to the truck cartel will in that case be known to the Dutch court, of which 15 in the first group, 18 in the second group, 22 in the third group and 12 in the fourth group. This makes the Netherlands one of the countries with the most bundled litigation in relation to this cartel.
On 11 February 2022, the Supreme Court ruled in the case of Trafigura versus the Stichting Victimes Des Déchets Toxiques de Côte D’Ivoire.[1] The Supreme Court assessed Trafigura’s complaints about the judgment from the Court of Appeal. These complaints pertained to, inter alia, (i) the application by the Court of Appeal of Article 8 of the Brussels I Regulation (Recast) and its substantiation thereof, (ii) the assessment of the admissibility and the facts that the Court of Appeal involved therein and (iii) the assessment of the similarity requirement and the safeguard requirement by the Court of Appeal. The Supreme Court ruled that Trafigura’s complaints about the judgment of the Amsterdam Court of Appeal of 14 April 2020 are unfounded and cannot lead to the setting aside of that ruling. This means that the handling of the Foundation’s claim before the Amsterdam Court of Appeal can be continued. On grounds of Article 81 of the Judiciary (Organisation) Act, the Supreme Court does not state its reasons for arriving at this decision.
On 8 February, the ICAM Foundation and six individuals launched a collective action against the Dutch State, more specifically the Dutch Minister of Health, Welfare and Sport (hereinafter the “State”), with regard to a data breach that took place at the Dutch Public Health Service (“GGD”).[1] The Minister of Health, Welfare and Sport is responsible for the IT systems of the GGD. The data breach resulted from the abuse of private data that Dutch citizens had shared with the GGD for the purpose of making a coronavirus vaccination or test appointment, or for the purpose of source and contact testing. Due to a lack of security, call centre employees were able to view and download bulk sensitive information, such as citizen service numbers (BSN), health data and address details. As a result of the data breach, the personal data of at least 6.5 million people were accessible and available for illegal data trafficking. It has been established that the personal data of at least 1,250 people were actually stolen and probably sold.
The ICM Foundation represents the Dutch victims both on the basis of WAMCA and on the basis of participation agreements. The ICAM Foundation, as well as the individual claimants, holds the State liable for the damage suffered by the victims. In addition, the ICAM Foundation summons the State to take adequate measures to prevent this type of incident from recurring in the future.
The class action is based on the grounds that there was a violation of the principle of data minimisation of Article 5 GDPR, the principles of privacy by design and privacy by default of Article 25 GDPR, the security obligation as laid down in Article 32 GDPR and the NEN 7510 standard for information security in healthcare, the Medical Treatment Contracts Act and the Act on Additional Provisions for Processing Personal Data in Healthcare.
On 26 January 2022, the District Court of Oost-Brabant rendered judgment in the case between Stichting Stadsverwarming Eindhoven (the Foundation) and Ennatuurlijk B.V.[1] This was one of the two cases pending before the District Court of Oost-Brabant against Ennatuurlijk B.V. The question was whether Ennatuurlijk B.V. had rightly charged connection costs to users of district heating. The Foundation is seeking a declaratory judgment that Ennatuurlijk, without any legal basis, charges or charged an annual connection contribution and charges or charged interest on this without any legal basis. In addition, the Foundation is seeking a declaratory judgment entailing that Ennatuurlijk must bring the pricing in line with legislation and regulations and that Ennatuurlijk has an obligation to refund the amount already (wrongly) paid. Ennatuurlijk B.V. argued against admissibility of the claim, but in vain. According to the District Court, the claims are based on a sufficiently common legal question and the interests of those represented are sufficiently safeguarded.
The District Court then investigates whether there was a contractual legal basis for charging connection costs and whether interest could be charged on these. According to the District Court, in this case particular weight is assigned to what the parties communicated to each other in writing, because the parties did not speak to each other prior to the conclusion of the agreement. The District Court concludes that, based on the written information, the users could not know or need not have known that an indexed connection contribution would be charged periodically, let alone that this would be done in the form of an interest-bearing loan. The declaratory judgment that Ennatuurlijk charged an annual connection contribution without any legal basis and charged interest on that is therefore granted.
However, the declaratory judgment entailing that Ennatuurlijk must adjust its pricing in line with legislation and regulations and that it has an obligation to refund amounts paid wrongly is rejected. The District Court finds that this claim was not formulated specifically enough. The Foundation has not explained sufficiently why the pricing is not in line with legislation and regulations. In addition, the award of an order for restitution requires an individual assessment per resident. This assessment cannot be given in the present proceedings.
On 26 January 2022, the District Court of The Hague rendered judgment in the case between Clara Wichmann and the State.[1] The issue revolves around the question of whether the Child Protection Board acted unlawfully vis-à-vis mothers who, against their will, had to give up their child in the period 1956 – 1984 (better known as ‘remote mothers’). The State defended itself by, inter alia, invoking prescription. The District Court finds that it is like that the claims have become time-barred. She does not have to rule on that procedural issue though, since the claims are denied on substantive grounds.
The District Court concludes that the State did not act unlawfully vis-à-vis Clara Wichmann’s represented parties. The Child Protection Board did not, either structurally or in concrete cases, in the performance of its duties in connection with the giving up and adoption of children of Clara Wichmann’s represented parties, make errors that are legally culpable in the sense asserted by the claimants. The report on which the claim is based shows that the absence of that freedom of choice was the result of the interplay of societal, social and religious relations during that period. Partly for this reason, it cannot be said that it is precisely the Child Protection Board that acted unlawfully vis-à-vis the birth mothers. This is all the more true as it was not the duty of the Child Protection Board to advise the mothers on practical and legal possibilities for raising their child themselves.
On 3 January 2022, the summons of Stichting Investor Loss Compensation against Airbus SE, among others, was registered in the central register for collective claims.[1] Airbus SE was involved for years in bribery scandals concerning the sale of its aircrafts, helicopters and satellites. In its summons, Stichting Investor Loss Compensation is seeking damages for the investors who purchased Airbus shares during the relevant period and held or sold them after one or more corrective disclosures occurred. Corrective disclosures include every disclosure as a result of which the price of the Airbus SE shares moved towards the natural, non-inflated price.
This class action is not about the (un)lawfulness of the bribery practices as such, but about the question of whether Airbus SE complied with its statutory disclosure obligation in connection with its involvement in the bribery practices and the risks that Airbus SE ran as a result. This is because there was a risk that Airbus SE would suffer serious reputational damage and financial loss as a result of criminal investigations and prosecutions. Since Airbus SE kept these risks hidden for a long period of time, the price was inflated for a long period. The foundation is therefore seeking, among other things, damages for the investors.
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
