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.
In an interview with MLex on 5 July 2021, Olivier Guersent, top official at the European Commission, said that the Commission will not soften its approach in the medium or long term because of Covid-19.[1]
During the pandemic, there was a special regime of subsidies and bailouts that allowed governments to put vulnerable industries on life support, and merger control slowed down. Now, the European Commission is thinking about how to move beyond this special regime. The normal application of competition law will be crucial to ensuring that Europe’s economies recover fully from the crisis, says Guersent.
About the “failing firm” provision, for example, Guersent says that this is a valid defence, adding however that the Commission will continue to insist on a high standard of proof.
The merger rules will not change as there is no consensus for changing the rulebook in either direction. Different standards will not be applied. But new rules might be needed for entrenched markets.
As regards cartel enforcement, the Commission is working on new techniques to better identify, detect and prosecute cartels. It is also working on the efficiency of the Leniency Notice. However, raids will continue to be carried out.
[1] MLex, ‘No competition enforcement let-up as Europe exits pandemic, Guersent says’, 5 July 2021.
On 13 July 2021, the German Federal Court of Justice, the Bundesgerichtshof (BGH), upheld a model for collecting mass claims.[1] The decision is a breakthrough for the possibility of collective redress in Germany. This applies not only, but in particular, to cartel damage claims. With this decision, the BGH anticipated the upcoming reform act for class actions that is still to enter into force. Importantly, the BGH did not see a significantly increased risk of unqualified legal services in the model for mass claims. In addition, the BGH clarified that the model for mass claims does not lead to conflicts of interest. This is because they all have a common interest in the most efficient implementation possible. The BGH concluded that there are risks related to the different degree of likelihood of execution of claims when these are combined in a group arrangement. Claims that have a lower likelihood of execution could adversely affect claims that have a higher likelihood of execution. The BGH nevertheless ruled that the advantages of sharing the cost risks and strengthening the negotiating position outweigh these possible risks.
Although the decision of the BGH related to a somewhat special scenario (enforcement of claims against the former director of an insolvent company), its relevance goes far beyond the collection of claims related to insolvent companies. Claims for damages due to cartel formation have often been the frontrunners in shaping the legal landscape for collective redress in Germany. Many leading cases, such as the well-known CDC cases (“Cartel Damages Claims”) before the Court of Appeal of Düsseldorf and the European Court of Justice related to claims due to cartel formation.
On 12 July 2021, Cargolux brought an action against the European Commission before the General Court of the EU for the recovery of unpaid interest following annulment of the antitrust fine imposed on the airline. Cargolux is claiming more than 8 million euros in interest.[1]
In support of its application, the applicant puts forward two pleas:
- First plea in law, alleging that the contested decision notified by the letter of 30 April 2021 is vitiated by an error of law and must be annulled in full pursuant to Article 263 TFEU. The applicant alleges that the contested decision incorrectly asserts that Cargolux’s request of 2 February 2021 for payment of the Default Interest Amount Payable and the Compound Interest Amount Payable is time-barred and inadmissible.
- Second plea in law, alleging that the Commission’s breach of the first paragraph of Article 266 TFEU renders the Union non-contractually liable to pay compensation equal to the Default Interest Amount Payable and the Compound Interest Amount Payable to Cargolux, pursuant to the second paragraph of Article 266 TFEU, Article 268 TFEU and the second paragraph of Article 340 TFEU.
Several banks fined by the EC in May 2021 for participation in a European government bond trading cartel (which we reported on in Q2) filed appeals against the EC’s decision with the EU General Court. UBS, Bank of America, Portigon, Nomura, Unicredit and Natixis have started legal proceedings against the fines. That means that only the whistleblower bank NatWest has not appealed the fine. All banks declined to comment on their challenge nor did they reply to requests for comments.[1]
[1] Case references are T-449/21 Natixis v Commission, T-453/21 UniCredit v Commission, and T-455/21 Nomura v Commission.
