The purpose of the Music#MeToo foundation is to give a voice to victims of insulting behaviour, discrimination, sexualisation and sexual abuse, and to combat this undesirable behaviour in the music industry. The Music#MeToo foundation aims to initiate a class action against Warner Music Benelux B.V. (“Warner”). This entails seeking an order for Warner to comply with its own ethical code of conduct and/or an injunction or a declaratory decision with regard to Warner’s unlawful conduct. According to the Music#MeToo foundation, there is structural misconduct by artists in the Dutch music industry. Warner is alleged to facilitate this misconduct and to fail to act against it.
On 8 December 2020, the Music#MeToo foundation submitted a request to the District Court for a preliminary examination of witnesses to be held. [1] The foundation wished to examine directors of Warner and of Spec Entertainment B.V. (an artist management company), together with a few rap artists. As Warner failed to appear before the District Court, the request was granted. On appeal, Warner and six other applicants requested that the decision be set aside and that the request for the holding of a preliminary examination of witnesses be denied after all. According to Warner and three other applicants, the request should be denied because there was no interest on the part of the Music#MeToo foundation. In Warner’s view, the foundation intended to institute proceedings on the basis of Article 3:305a of the Dutch Civil Code, but failed to meet the requirements set for that purpose.
In assessing a request to conduct a preliminary examination of witnesses, the requirements for a class action as referred to in Article 3:305a of the Dutch Civil Code were relevant. The Court of Appeal held that the Music#MeToo foundation had not made a sufficiently plausible case to suggest that it performed any activities to achieve its objects under the articles of association or had a relevant support base. The Music#MeToo foundation did not provide the Court of Appeal with any information to show that it had the support of relevant followers. The Court of Appeal noted that, in the absence of further information about the foundation’s support base, it was not possible to assess whether there were similar interests, in the sense that efficient and effective legal protection for the benefit of the interested parties could be served. As it had not been established that the foundation had a collective interest in initiating proceedings against Warner, or an interest of its own in doing so, it had no interest in the preliminary examination of witnesses requested by it. The request for the holding of a preliminary examination of witnesses was denied.
In preliminary relief proceedings, the Platform Storm foundation sought the cessation of the construction of a wind farm by three defendants. [1] Various preliminary relief proceedings were conducted under administrative law, in which the appeals (of Platform Storm and others) were declared inadmissible or unfounded.
On 22 October 2020, the Preliminary Relief Judge declared Platform Storm to lack locus standi for three reasons. Firstly, the summons did not satisfy the requirements ensuing from Article 1018c(1) of the Dutch Code of Civil Procedure. Platform Storm had not (sufficiently) elaborated on the requirements of Article 1018c(1) of the Dutch Code of Civil Procedure in the summons. The limited additional explanation at the hearing was also insufficient.
Furthermore, Platform Storm did not meet the locus standi requirements from Article 3:305a of the Dutch Civil Code, as it did not make any assertions about those requirements in the summons. At the hearing, Platform Storm invoked the exception in Article 3:305a(6) of the Dutch Civil Code. The Preliminary Relief Judge rejected that reliance and noted that, if Platform Storm had wanted to invoke the exception in Article 3:305a(6) of the Dutch Civil Code, it should have done so in the summons. The arguments put forward for the defence regarding a lack of locus standi were also refuted with insufficient substantiation by Platform Storm at the hearing. The fact that Platform Storm had previously been considered an interested party by the administrative court did not alter the Preliminary Relief Judge’s opinion, as Articles 1018c of the Dutch Code of Civil Procedure and Article 3:305a of the Dutch Civil Code lay down special requirements for locus standi in civil cases that do not apply in administrative law.
Finally, Platform Storm had no locus standi because administrative proceedings had already been conducted that offered sufficient legal protection, and these legal proceedings had not led to the revocation of the defendants’ licences. Hence, the validity of the decision made had to be assumed (formal legal effect). Moreover, there was still an administrative law option open to request the relevant administrative body to withdraw or suspend the licences for violation of EU law. At the hearing, Platform Storm indicated that it indeed wished to take this route.
The aim of the BREIN foundation is to combat copyright infringements, in particular for its affiliated rightsholders. On 1 July 2020, a district court in the Netherlands ruled in preliminary relief proceedings initiated by BREIN, seeking that the defendant be ordered to stop offering hyperlinks or other technical references that allow users access to illegal content. [1] The defendant disputed BREIN’s right of action, arguing that the requirements of Article 1018c(1) of the Dutch Code of Civil Procedure had not been met.
Firstly, the defendant disputed that BREIN had sufficiently described the parties whose interests it is representing. The Preliminary Relief Judge held that in order to comply with Article 1018c(1)(b) of the Dutch Code of Civil Procedure it was not necessary to list specific names in the summons. The fact that the foundation referred in its summons to its website for the names of its affiliates was sufficient. In so doing, BREIN had provided sufficient description of the persons for whom the class action was instituted.
In addition, the defendant disputed that BREIN had sufficiently substantiated the assertion in the summons that repeated infringing acts had taken place. This defence was also rejected by the Preliminary Relief Judge as the summons contained a specific claim and factual assertions on which that claim was based.
Finally, the defendant argued that BREIN had no locus standi because its summons did not state what had been done to reach a settlement in mutual consultation. According to the defendant, the requirement of Article 3:305a(3) of the Dutch Civil Code had not been met. This defence was also rejected. The defendant had stated itself that BREIN made him a settlement proposal, but that no consensus had been reached on this point. In addition, the Preliminary Relief Judge held that the requirement of Article 3:305a(3) of the Dutch Civil Code did not go as far as requiring BREIN to enter into consultation with the defendant even if that consultation could not reasonably help resolve the dispute. The Preliminary Relief Judge declared BREIN to have a right of action.
On 9 December 2020, the Amsterdam District Court ruled that it would not substantively adjudicate a case brought by a class action foundation against, inter alia, Rabobank. The case concerns a class action against a number of banks in response to the global interest rate manipulation affair. Rabobank, Lloyds, UBS and digital broker ICAP Europe Ltd have been sued by the Dutch Elco Foundation for the damage allegedly suffered by aggrieved professional investors as a result. The District Court held, however, that the Foundation had no locus standi because similar interests were lacking and there was a failure to meet the requirement that the interests of the persons on whose behalf the action is brought be sufficiently safeguarded. According to the District Court, it had also not been shown that this class action and the declaratory judgments sought therein could achieve effective and/or efficient legal protection. [1]
The Stop Online Shaming (SOS) foundation and the Expertise Centre for Online Child Sexual Abuse (EOKM) have filed class actions against vagina.nl for the unauthorised publication of sex videos and photographs. The District Court held in its interlocutory judgement of 28 October 2020 that the case could be substantively adjudicated because the requirements of Article 1018c(5) of the Dutch Code of Civil Procedure had been met. [1] This is one of the first cases in which this point has been decided under the new WAMCA. In this respect, the District Court held, inter alia, that the action was one of principle, which meant that lower requirements applied in determining whether there was a right of action. The District Court did assess, inter alia, whether it was sufficiently plausible that a class action would be more efficient and effective than individual actions in this case. The interests could be sufficiently bundled for that purpose. The foundations had also pointed out the diffidence of the parties involved as regards personally initiating proceedings against the website owner. After this decision, the District Court had to designate an exclusive representative (as referred to in Article 1018e of the Dutch Code of Civil Procedure), but came up against the fact that the claims had been lodged by two legal entities while the law does not regulate a joint request. The District Court dealt with this by designating SOS as the exclusive representative and ruling that EOKM (which focuses on minors) was also permitted to perform procedural acts. In this regard, too, the District Court decided that the decision had to be recorded in the central register, despite this not being prescribed by law.
By interlocutory judgment of 18 November 2020, the District Court supplemented its judgment of 28 October 2020, the reason being that the District Court should have decided ex officio on the provisions of Articles 1018f and 1018g of the Dutch Code of Civil Procedure, but neglected to do so. [2] Article 1018f of the Dutch Code of Civil Procedure attaches a number of rules to the designation of SOS as exclusive representative, the purport of which is that the persons whose interests are being represented by SOS are informed of that designation and can consider their position (‘opt out’, paragraph 1, or ‘opt in’, paragraph 5). The District Court now added that the parties could comment on the practical details of the required notification to the persons whose interests are represented by the foundations, could comment on the necessity and usefulness of setting a time limit for a settlement period and could express any wish they may have to supplement the grounds of the claim. In that context, the District Court directed that advertisements regarding the class action had to be published in a number of national newspapers. The District Court gave the parties the opportunity to comment on the text of the advertisement and on the text that the District Court intended to publish on the rechtspraak.nl website.
In July 2020, the Diesel Emissions Justice Foundation (DEJF), which represents car users, summoned Daimler A.G. et al., manufacturer of, inter alia, Mercedes-Benz cars, in response to the diesel engine emissions scandal. At the request of the Car Claim Foundation, the Amsterdam District Court decided in a cause-list decision of 30 September 2020 to extend the (three-month) period for other parties to also issue a summons by two months (pursuant to Article 1018d of the Dutch Code of Civil Procedure). [1] Despite the District Court’s initial impression that the case was complex from both a factual and legal perspective, it did not grant the possible three-month extension because Car Claim was already aware of DEJF’s case. The District Court held that this cause-list decision must be added to the central register for class actions, despite the fact that the WAMCA does not prescribe this. Car Claim itself had explicitly asked that its request for extension also apply to other representative entities, but the District Court did not decide on that request because it did not see what interest Car Claim had therein. The register now shows that writs of summons have also been issued by Car Claim and the Emission Claim Foundation. This likely means that the District Court will still have to decide whether Emissions Claim could also benefit from the extension request submitted by Car Claim.
On 21 October 2020, MarktOnderzoekAssociatie.nl (MOA), a market research association, requested the District Court to declare that regulations and policy rules pertaining to the remit of Statistics Netherlands are non-binding. Not only do MOA members receive data from Statistics Netherlands: they also compete with Statistics Netherlands, particularly in respect of contracts for government authorities. Because the State is providing it with less fixed annual compensation, Statistics Netherlands is focusing more on commercial contracts for government authorities. In MOA’s view, according to the legislative history such activities are only permitted on an occasional basis, and the current situation constitutes unfair competition for the MOA members. One of the arguments for conducting this case as a class action is that the members involved would prefer to remain anonymous because they fear the wrath of Statistics Netherlands and the government authorities as the supplier of data and contracts. MOA discusses its locus standi requirements relatively extensively, but states that it does not have to comply with the locus standi requirements in Article 3:305a(2) and (5) of the Dutch Civil Code, because it is pursuing an objective of principle. [1]
In October 2020, on behalf of affiliated IP rightsholders, the BREIN foundation instituted an injunction action against ExpatsIPTV, claiming that its streaming services infringe IP rights. In that respect, BREIN asserted that it did not have to comply with the locus standi requirements from Article 3:305a (2) and (5) of the Dutch Civil Code because it was pursuing an objective of principle and was not seeking damages. ExpatsIPTV had taken its website offline following previously granted preliminary relief. According to BREIN, this class action in the form of proceedings on the merits was necessary because ExpatsIPTV had not provided a sufficient undertaking to the effect that it would cease the services. BREIN is also seeking a great deal of information and substantiation regarding the alleged infringements, the parties involved and the proceeds of the infringements. Such proceeds could prompt subsequent actions for damages. [1]
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
Mlex reported [1] on 20 April 2020 that LG Display had declared that it settled an antitrust claim in 2019 with the Japanese screen maker Iiyama in the aftermath of the liquid-crystal displays cartel. In 2010, the European Commission imposed a fine of EUR 649 million on LG Display, AU Optronics, Chimei Innolux, and others for having engaged in LCD display price-fixing from 2001 to 2006.
According to Mlex, on 5 May 2020, Daimler A.G. argued before the UK High Court in London that Wallenius Wilhelmsen’s data on the operation of the maritime car carriers cartel amounted to a “smoking gun”.[2] In those proceedings,[3] Daimler is claiming damages from various shipping companies for their role in the cartel[4] that we wrote about earlier in Q(2020-1). In its decision of 21 February 2018, the European Commission fined the shipping companies Mitsui O.S.K. Lines, Ltd, MOL (Europe Africa) Ltd, Nissan Motor Car Carrier Co., Ltd, Kawasaki Kisen Kaisha, Ltd, Nippon Yusen Kabushiki Kaisha and various companies affiliated with Wallenius Wilhelmsen Logistics AS, including EUKOR Car Carriers, inc. for € 395 million for their role in the cartel. The maritime car carriers are also under fire from UK car manufacturers in other procedures. For example, Jaguar Land Rover7 and Volvo8 have initiated separate proceedings against the members of the cartel pursuant to the European Commission’s decision.
On 19 June 2020, in the proceedings between Wolseley UK Limited and others v. Fiat Chrysler Automobiles N.V., CNH Industrial N.V., DAF Trucks N.V. and Daimler A.G.9 in the aftermath of the truck cartel, the Competition Appeal Tribunal ordered Daimler A.G. to provide “explanatory guidance” about the Daimler database it had provided to Wolseley in the context of disclosure. This explanatory guidance is furthermore meant to consist of Daimler releasing additional information to make it easier to understand the Daimler database, including the guidance that Daimler has already had to provide to claimants in other truck cartel proceedings.
- Mlex, LG Display settles with Iiyama over LCD cartel claim, 30 April 2020.[↩]
- Mlex, Wallenius Wilhelmsen data provides ‘smoking gun’ in car-shipper operations, Daimler tells UK judge[↩]
- The case is CL-2018-000572 Daimler AG v MOL (Europe Africa) Ltd and others.[↩]
- Commission Decision of 21 February 2018, Case AT.40009 — Maritime Car Carriers, 2018/C 314/09.[↩]
