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.
Because it was expected that the proceedings instituted by the foundation Diesel Emissions Justice (the Foundation) against Volkswagen would become extensive, the District Court proposed to divide the proceedings into procedural phases. The District Court proposed to discuss the jurisdiction of the Dutch court and the applicability of the WAMCA and/or Article 3:305a (old) DCC in the first phase. The Foundation asserted that it was more practical and clearer to discuss the Collective Action questions in the first phase and the PIL questions in the second phase. This was because, as a result of Article 1018c(5) DCCP and the structure of the WAMCA, it was desirable that, after the opportunity to opt in or opt out had been offered, it would become clear on whose behalf the representative was acting, as this could affect jurisdiction.
The District Court found that it also had to decide on its jurisdiction with regard to the foreign defendants. Seeing that further decisions could only be taken if the District Court had jurisdiction vis-à-vis a defendant, this subject would have to be dealt with in the first phase of the proceedings, if necessary ex officio. Due process further required that the group of interested parties whose interests the Foundation claimed to represent in its summons was taken as point of departure. An opportunity to opt-in offered at a later point in the proceedings and the subsequent use thereof thus could not lead to jurisdiction arising vis-à-vis certain defendants where it was previously lacking, according to the District Court. The District Court therefore rejected the Foundation’s argument that jurisdiction could only be assessed after the opportunity to opt in or opt out had been offered. Briefly put, Article 1018c(5) DCCP provides that substantive assessment of the class action will only take place after a number of preliminary questions have been answered. According to the District Court, it could not be deduced from this article that the assessment of the preliminary questions must also precede the assessment of jurisdiction.
The judgment of 3 March 2021 in the case of Stichting Diesel Emissions Justice Volkswagen has shown that the possibility of joinder under the WAMCA regime is likely ruled out.
The recently introduced WAMCA regime also introduced Title 14A (Articles 1018b through 1018m) of the Dutch Code of Civil Procedure. This title pertains to the procedural aspects of the 305a procedure. It therefore applies to proceedings that were instituted on or after 1 January 2020 and in addition relate to an event that occurred on or after 15 November 2016. Article 217 of the Dutch Code of Civil Procedure provides that every party having an interest in proceedings pending between other parties may claim to join those proceedings or to intervene in the proceedings.
Car Claim argued that Title 114A does not exclude the application of Article 217. The District Court finds that this assertion in itself is correct, but that there is nevertheless no room for joinder under the WAMCA regime. In this respect, it finds that, pursuant to Article 1018d, Car Claim could have lodged a collective claim for the same event within three months after the issue of the summons by SDEJ. In that case, the District Court would have designated one of them as the exclusive representative. The non-designated claimant could have stayed as a party and the District Court would have decided whether this claimant would also have been allowed to perform procedural acts. The WAMCA – the District Court argues – therefore has a closed system for claimants in two respects. This design of this system was well thought through by the legislature. As a result, Car Claim cannot be assigned a place as a claimant in the proceedings in circumvention of the admissibility requirements and the WAMCA designation procedure. That would contravene the intention of the legislature.
The fact that it is not certain that a final judgment will have been rendered in the Car Claim proceedings when the possibility of opt-out is offered in the SDEJ proceedings does not, in the District Court’s opinion, constitute a reason to decide otherwise, and neither does the circumstance that Car Claim’s claim in the Car Claim proceedings has been declared admissible, or that Car Claim’s good intentions are evident.
As the applicable law for the underlying action has not yet been determined, the assessment was also made according to the law applicable until 1 January. For Car Claim to be able to join the proceedings under this law, it is necessary for the SDEJ proceedings to turn out unfavourably to SDEJ and for that to be disadvantageous to Car Claim. According to the District Court, it is not sufficient that there is a risk of conflicting decisions.
Finally, the District Court found that the interests represented by Car Claim and SDEJ overlap. When a judgment is rendered in respect of SDEJ, part of the group represented by Car Claim will also be bound by it. The District Court held that Car Claim therefore wishes to stay this judgment with the intention of preventing any substantive ruling from being given in the main action for the time being. SDEJ, however, did want a substantive assessment. Allowing joinder in this case would therefore be at odds with the essence of joinder; the joining party must support the position of the party it joins and not claim something else.
For all the aforementioned reasons, the District Court therefore rejected Car Claim’s claim for joinder.
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.
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.
