On 2 December 2021, Advocate General Richard de la Tour delivered his opinion on the CJEU case Meta Platforms Ireland v BVV (ECLI:EU:C:2021:979). The case involves the interpretation of Article 80(2) of the General Data Protection Regulation (“GDPR”). The question before the CJEU is whether consumer interest groups can bring a collective action for breach of the GDPR on behalf of data subjects, regardless of whether an individual data subject’s concrete rights have been violated and without a mandate from the data subject.

De la Tour is of the opinion that not only entities whose sole purpose is the protection of personal data can bring an action. Pursuing an interest related to the protection of personal data, as a consumer protection association does, is sufficient (par. 61). It is furthermore not required that an entity should identify in advance one or more persons affected by the processing. It is sufficient that the processing entailed an infringement of the GDPR (par. 62-63). In interpreting Article 80(2) GDPR, the main focus is on the effectiveness of the GDPR and the protection of the rights of data subjects (par. 64, 67, 73-78, 81 & 83-84). According to De la Tour, collective actions are particularly suited to the objective of establishing a high level of protection of personal data (par. 76-78). Among other things, the provision therefore allows Member States a great deal of leeway to implement the article in a way that allows entities to bring collective actions without a mandate from the data subjects (par. 69-75; also see par. 54 on the optional nature of the provision).

The CJEU is expected to deliver judgment on 28 April 2022.

On 11 November 2021, the Court of Justice ruled in the air cargo case between the Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands B.V. v. British Airways, KLM, Lufthansa and a group of other airlines.[1] It answered the questions referred to it for a preliminary ruling by the District Court of Amsterdam, the Netherlands, as to whether national courts could also rule on claims relating to flights dating from before 1 May 2004 between the EU and outside countries; flights dating from before 19 May 2005 between Iceland, Lichtenstein, Norway and outside countries and flights dating from before 1 June 2002 between the EU and Switzerland. The Court of Justice answered in the affirmative. National courts may also rule on older claims.

[1] CJEU 11 November 2021, case C-819/19 (Stichting Cartel Compensation and Equilib/KLM and others).

On 28 October 2021, Advocate General Rantos delivered an opinion regarding the same truck cartel.[1] In a case between a Spanish company referred to by the letters RM v. Volvo and DAF Trucks, the Court of Appeal of Léon, Spain had asked the Court of Justice for a ruling on the temporal scope of the Antitrust Damages Directive.[2] Relevant in that context is that the Antitrust Damages Directive distinguishes between substantive provisions that have not been declared retroactively applicable and procedural provisions that are applicable in cases that predate the Directive’s entry into force. Two things were at issue.

In Spain, there is a limitation period of one year for non-contractual liability, whereas Article 10(3) of the 2014 European Antitrust Damages Directive specifies a five-year limitation period for bringing actions for cartel damages. The question is which limitation period applies here. The Advocate General concluded that the five-year limitation period is a substantive provision and does not therefore apply to cases where the facts and fines predate the implementation of the Directive.

Another point of dispute was whether the presumption that a cartel leads to damage in Article 17(2) of the Antitrust Damages Directive applies here. The Advocate General held that this was a procedural provision and that it is therefore also applicable in cases where the facts predate the Directive.

[1] Opinion of Advocate General M. Athanasios Rantos, case C-267/20, 28 October 2021. See also Court of Justice of the European Union Press Release No 193/21: “Truck cartel in Spain: Advocate General Rantos clarifies the temporal scope of the directive on the compensation of victims of anti-competitive practices”, 28 October 2021.

[2] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

On 6 October 2021, the Court of Justice of the European Union ruled in the case of Sumal S.L. v Mercedes Benz Trucks Espana S.L., one of the cases it is handling in response to the truck cartel.[1] In 2016, the European Commission imposed a fine on the defendant’s German parent company, Daimler AG, for infringement of competition law in the truck cartel.[2] However, the Spanish company Sumal had not initiated cartel damages proceedings against Daimler AG but against its Spanish subsidiary. The claims were denied at first instance because this Spanish company was not the addressee of the Commission decision. The Barcelona Court of Appeal however had its doubts about this opinion and referred the case to the Court of Justice of the European Union.

The Court of Justice of the European Union arrived at a different decision. It held that a subsidiary could also be held liable if it formed an “economic unit” with the addressee parent company. The claimant therefore has to prove “the economic, organisational and legal links that unite the two legal entities” and “the existence of a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was held to be responsible.”

[1] EC decision of 6 October 2021, case C-882/19 (Sumal/Mercedes Benz Trucks Espana).

[2] See the Commission’s press release: “Antitrust: Commission fines truck producers € 2.93 million for participating in a cartel”, 19 July 2016

On 9 December 2021, an appeal court in Stuttgart handed down a judgment in a truck cartel follow-on action in favour of truck manufacturer Daimler.[1] In 2018, the lower Stuttgart court ordered Daimler to pay compensation to two German construction firms on account of its involvement in the truck cartel.[2] The firms were seeking damages of around €300,000 as compensation for purchased trucks and overpriced liability insurance premiums. After several rounds of appeal before the Stuttgart appeal court (which upheld the judgment at first instance) and the Federal Court of justice (which overturned the appeal court ruling),[3] the case was sent back for reconsideration by the Stuttgart appeal court. The Federal Court of Justice said the appeal court had erred in finding that the claimant construction firms suffered damage because of the cartel. In reaction to the judgment, Daimler declared the following in a statement: “We are still convinced that our customers haven’t suffered any damage. The EU Commission didn’t make any determination in its decision on the question of damage to customers. In addition, there are already some final judgments dismissing actions.”^[4]

[1] Stuttgart higher regional court, 2 U 101/18.

[2] Stuttgart regional court, 45 O 1/17.

[3] Federal Court of Justice, KZR 35/19.

[4] According to Mlex, ‘Daimler overturns truck-cartel claims ruling in Stuttgart appeal court’, 10 December 2021.

In a 27 September 2021 decision published in Q4 in a follow-on action in the context of the truck cartel, the Dortmund District Court assumed that the cartel caused harm. The District Court held that the European Commission’s fining decision contains significant indications demonstrative of the cartel’s price effect. The District Court referred to the cartel’s length, broad market coverage (in this case, more than 90% in the EU and nearly 100% of the German market), lack of product substitutability and degree of organisation, among other things. Referring to established economic theories and empirical research, the District Court held that these factors are core indicators generally indicative of a cartel-related price increase (the empirical principle).

The District Court accorded particular weight to the empirical principle due to the contradictory nature of the expert evidence that the parties had submitted. Nor do the submitted expert statements cancel each other out, according to the District Court. The District Court nevertheless held that the indications led, in any event, to the assumption of a certain extent of damage.

The question of whether it is possible to determine the level of damages and/or conduct an expert investigation to that end will be dealt with at a subsequent stage before a decision is rendered in the present case.

On 29 December 2021, the Amsterdam District Court rendered judgment in the case of The Privacy Collective (hereinafter: TPC) v. Oracle and
Salesforce.[1] TPC asserts that Oracle and Salesforce collect the personal data of Internet users and sell this information to third parties to enable them to offer personalised ads, among other things. In addition, TPC asserts that Oracle violated the privacy of Dutch Internet users in a data breach. TPC is therefore seeking, among other things, damages in this class action suit. Rather than address the substance of the case in this judgment, the District Court assessed the admissibility of TPC’s claim.

All admissibility requirements of Article 3:305a DCC must be satisfied before a class action can be declared admissible. One of these requirements that the law imposes is the representativeness requirement. The requirement of representativeness prevents a foundation or association from instituting legal proceedings without the backing of a support base. It is up to the foundation or association to factually substantiate how many injured parties actually support the action in question and, accordingly, the scope of the claim it is representing. The court held that TPC had failed to do so. TPC acquired its support base by means of a system of “likes”; visitors to TPC’s website could express their support by clicking on a “like” button. The District Court held this to be insufficient for purposes of the representativeness requirement, in part because insufficient information was provided on the “like” page and no registration was kept of the data of the “likers”. The fact that TPC enjoys the support of privacy organisations does not automatically imply that it is sufficiently representative. TPC’s claim was declared inadmissible. TPC has since lodged an appeal.[2]

[1]Amsterdam District Court 29 December 2021, ECLI:NL:RBAMS:2021:7647
[2] On 28 April 2022, the CJEU handed down its judgement in the case of Meta Platforms Ireland (C-319/20). The judgment shows that collective actions ‘undoubtedly’ contribute to strengthening the rights of those involved. Therefore, strict (admissibility) requirements should not be imposed on interest groups. We will discuss this judgement in Q2022-2.

On 9 July 2021, the Procurator General of the Supreme Court of the Netherlands (“PG”) gave an advisory opinion in response to a judgment of the Court of Appeal of Amsterdam.[1] In short, the case in question concerns whether HP (a manufacturer and seller of printers and cartridges) acts unlawfully by installing so-called dynamic security software on its printers. This software blocks the use of non-HP cartridges.

The claimant is a foundation named ‘123inkt-huismerk klanten’ (the “Foundation”), which was founded by the directors of Digital Revolution B.V., a company selling printer cartridges blocked by HP’s software. The Foundation initiated a claim against HP on behalf of consumers who have bought these cartridges, demanding a ban on the use of the software in the HP printers. The Foundation opted to proceed via the assignment route, which involves the consumers assigning their claims to the Foundation. This meant that the Foundation acted as the formal litigant on behalf of these consumers.

Later in the proceedings, however, the Foundation tried to change its claim to one based on Article 3:305a Dutch Civil Code (“DCC”). In doing so, the Foundation tried to switch from being a formal litigant to a party by representation. According to the PG, a change in litigant status is in violation of due process. In line with the judgment of the Court of Appeal, the PG therefore concluded that the Foundation had no locus standi on the basis of Article 3:305a DCC.[2]

As to whether or not HP was acting unlawfully in using the software, the PG drew a distinction between printers sold before and after 1 December 2016. Regarding the printers sold before 1 December 2016, the PG concluded that the Foundation had no interest in banning the use of the software. This is because HP has removed the software from all these printers, meaning that non-HP cartridges are no longer blocked.

With regard to the printers manufactured after 1 December 2016, the PG concluded, in line with the Court of Appeal, that the use of the software was not necessarily unlawful. The PG argued that HP has a legitimate interest in the use of the software, i.e. to prevent the use of counterfeit cartridges and to avoid reputational damage and possible consumer claims. The PG considered it likely that consumers would attribute negative printer experiences (when using non-HP cartridges) to failure of the printer and thus to HP. Furthermore, HP informs all customers about the software installed in its printers and the consequences thereof. As such, the justification for the use of the software is that the customer has the choice of whether or not to purchase a printer with the dynamic security software built in.

Taking the PG’s conclusion into consideration, the Supreme Court ruled on 24 December 2021 that the complaints could not lead to the annulment of the Court of Appeal’s judgment (Article 81(1) of the Judicial Organisation Act).[3]

[1] Procurator General of the Supreme Court of the Netherlands 9 July 2021, ECLI:NL:PHR:2021:713

[2] Court of Appeal of Amsterdam 17 December 2019, ECLI:NL:GHAMS:2019:4502

[3] Supreme Court of the Netherlands 24 December 2021, ECLI:NL:HR:2021:1950

On 29 November 2021, the District Court of The Hague rendered judgment in a claim of two anonymised associations/foundations and one individual claimant v. the State and individual officials.[1] In preliminary relief proceedings, they sought the revocation of the marketing authorisations of BioNTech/Pfizer, Moderna, AstraZeneca and Janssen (developers of COVID vaccines). In these preliminary relief proceedings, the claimants envisage the immediate suspension of the vaccination campaign. They asserted that the recommendations of the Health Council of the Netherlands, in the context of which the State is informed about vaccinations, are unlawful. All three claimants were declared to have no locus standi. In the case of the foundation and the association, this was based on the exception of Article 3:305a(6) DCC.

The District Court ruled on the merits that the claimants’ claims in these preliminary relief proceedings were not directed against specific (COVID) measures of/decisions by the State. That circumstance alone implied that the claimants in these proceedings had no legally relevant interest in an assessment of the merits of the recommendations by the Health Council of the Netherlands. In addition, the District Court held that it is not the State but the European Commission that had the authority to revoke the marketing authorisation in question. Finally, an assessment of the merits of the recommendations would go far beyond the scope of a preliminary relief proceedings. Consequently, the claimants’ claims were denied. This decision was upheld on appeal.

[1]District Court of The Hague 29 November 2021, ECLI:NL:RBDHA:2021:12992

On 23 November 2021, the District Court of The Hague rendered judgment on the claim of two foundations and one association v. the State.[1] In these proceedings, the claimants sought an injunction prohibiting the State from allowing the export of (future) military goods and technology for the Egyptian State and/or the Egyptian navy. According to the claimants, Egypt violates human rights on a grand scale and the Egyptian Navy is an integral part of this regime. The (Dutch) State acted unlawfully by allowing and granting a permit for the export of these military goods to Egypt; there is a (highly) plausible risk that the proposed deliveries of military goods to the Egyptian Navy could contribute to or even be used directly in acts of domestic suppression, violations of fundamental human rights, violations of international (humanitarian) law and/or otherwise violate the obligations of the Netherlands under the Common Position and the Arms Trade Treaty.

One of the foundations was declared to have no locus standi because it failed to demonstrate that it meets the requirements of Article 3:305a DCC. The other claimants were however declared to have locus standi.

The District Court held that the claimants were unable to make a sufficiently plausible case that, given the current situation, the Minister could not have reasonably arrived at his decision to grant the current permits for the export of military goods to Egypt. The State monitors and takes all available information into account in the process of its decision-making. The State also made a plausible case that it carefully assesses the granting of permits. In addition, it was not asserted, nor is there any evidence, that other EU countries are currently declining to make similar deliveries to the Egyptian Navy. The claimants’ claims were therefore denied.

[1]District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12810