On 12 January, the Court of Justice rendered its judgment in the proceedings started by HSBC Holding plc, HSBC Bank plc, HSBC Continental Europe and supported by the banks Crédit Agricole and JP Morgan Bank against the European Commission in light of HSBC’s involvement in the Euribor cartel.[1] HSBC challenged the Commission’s finding that it took part in a cartel relating to the Euribor benchmark and it challenged the General Court’s decision to dismiss HSBC’s action. The Court of Justice acknowledged that the General Court could not dismiss HSBC’s action and said that the General Court made several errors of law, but upheld the finding that HSBC did participate in the cartel.

[1] EUCJ 12 January 2023, ECLI:EU:C:2023:11 (HSBC/Commission).

On 5 January, the full text of a decision of the General Court in the appeal of British Airways plc against the European Commission on the airfreight cartel was published.[1] The European Commission fined British Airways in 2010 for its role in the airfreight cartel, but the General Court annulled this part of the Commission’s decision in 2015. British Airways received back the amount paid as a fine plus a ‘guaranteed return’. According to British Airways, it has also the right to receive an amount for default interest of more than EUR 21 million and compound interest. The Commission rejected this request in a first letter and confirmed its rejection in a second letter. British Airways requested to annul this decision, but now the Gereral Court decided that the application for its annulment was too late. It did not follow British Airways’ arguments that the limitation period started at the date of the second letter, since the second letter was only a confirmation of the first. The applicable for annulment is therefore found inadmissible.

[1] General Court 22 December 2022, ECLI:EU:T;2022:863 (British Airways/European Commission).

On 29 June 2022 it was announced that the CAT allowed proceedings between Dr Rachael Kent and Apple Inc. and Apple Distribution International Ltd regarding the prices charged by Apple in its App store.[1] Ms Kent was a proposed representative for all the aggrieved parties of Apple and claimed that Apple was infringing competition law by obtaining 30% income from app developers in exchange for placement in its app store. She requested permission to initiate an opt-out class action, known in England as a collective procedure order (CPO). Although Apple opposed this, the CAT unanimously decided that the subject was sufficiently important to allow these proceedings, but what exactly the proceedings were about would be assessed later. The next discussion was whether her CPO actually met the statutory requirements.

[1] Competition Appeal Tribunal, 29 June 2022, case 1403/7/7/21 (Kent/Apple).

On 10 June 2022, the UK Court of Appeal ruled in the case between Gemalto Holding B.V. and Thales Dis France SA and 13 others (“Gemalto“) versus Infineon Technologies AG, Infineon Technologies UK Ltd, REnesas Electronics Corporation (“Infineon“).[1] Infineon was fined by the European Commission in 2014 because of price agreements over chips. Competitor Gemalto had subsequently initiated proceedings for damages. The question was whether Gemalto’s claims had meanwhile become time-barred. The Court of Appeal ruled, as had the lower courts, that this was indeed the case. It noted that the five-year limitation period begins to run on the date of the European Commission’s press release of 22 April 2013. It is relevant that Gemalto played a role in the European Commission’s investigation into the cartel in the years before. Gemalto received, among other documents, the Statement of Objections. The Court of Appeal therefore found that Gemalto knew about the cartel at least at the time of the press release of 22 April 2013, even though the European Commission’s decision dates from a later date, namely 2014.

[1] Court of Appeal (Civil division), [2022] EWCA Civ 782, case CA-2022-00233 (Gemalto/Infineon).

On 6 May 2022, the Court of Appeal ruled on an appeal of BT Group[1] against the CAT’s 27 September 2021 judgement by which it certified Le Patourel’s proposed damages claim as eligible for collective (class) proceedings upon an opt-out basis.[2] Le Patourel, as second class representative, alleges that BT Group has abused its dominant position in the market for voice only telephony by charging customers supra-competitive prices to customers.

BT Group appealed to the certification of the proposed claim and argued that if the claim were to be certified, it should proceed upon an opt-in basis, instead of opt-out. Opt-in would require any person wishing to benefit from the claims to, deliberately, join the claim at the outset. An opt-out claim, on the other hand, automatically includes all members of a defined class except those that choose to opt-out. The reason the CAT deciding on opt-out had to do with the fact that customers of voice-only services are often elderly and vulnerable and would not easily be inspired to sign up also given the limited award in the end (around 140 pounds).

BT Group argued in an appeal however, that the applicable rules expressed a general preference for opt-in “where practicable”. According to BT Group, it would be practicable to get the proposed class to opt-in because it would be possible to identify and contact BT customers based on customer records held by BT.

The Court of Appeal dismissed the appeal. Later, the court will further rule on whether to grant BT permission to submit an appeal against the CAT’s certification of the claim.

[1] The entities summoned are BT Group PLC and British Telecommunications PLC.

[2] Court of Appeal (Civil Division), [2022] EWCA Civ 593, Case No: CA-2021-000748 (formerly C3/2021/1632).

On 28 April 2022, the Landgericht Stuttgart denied a claim from Themis Schaden GmbH, a German claim vehicle, against Daimler in a class action relating to the truck cartel.[1] Themis Schaden claimed for around 350 underlying freight forwarders an amount of approximately EUR 96 million in damage in connection with the truck cartel established by the European Commission in 2016 and 2017. However, the court did not award the claim. It concurred with Daimler’s defence that Themis Schaden had no claim because the assignment agreements were invalid. Under German law, claim vehicles and their assignment agreements must comply with the Rechtsdienstleistungsgesetz, the law that prescribes rules for claim vehicles. The court ruled that the assignment agreements used by Themis Schaden did not comply with said law. The court also held that the claimant’s assignment model ignored the limits of its licence for class actions and that the assignment model boiled down to an unsolvable conflict of interest for the claimant.

[1] Press release of Landgericht Stuttgart 28 April 2022, ‘Urteil der 30. Zivilkammer zum Lkw-Kartell’.

On 22 June 2022, the Amsterdam District Court rendered judgment in a class action against Mercedes et al.[1] These proceedings have been instituted by three different foundations that want to be the exclusive representative. In this dispute, the foundations are claiming, inter alia, damages from Mercedes et al. because they manufactured and sold diesel cars with cheating software. In this judgment, the District Court rendered a decision on jurisdiction and the applicability of the WAMCA.

Firstly, the District Court declared the Stichting Emission Claim, one of the three foundations, inadmissible because it did not issue its summons within the statutory period and also did not request a postponement.

The District Court then discussed its jurisdiction. Not all claims of the foundations have been lodged against all the defendants for the benefit of the same group of persons whose interests the foundations represent. According to the District Court, this affects the assessment of jurisdiction, which is why it distinguishes between persons who purchased a vehicle in the Netherlands and persons who purchased a vehicle in another country of the European Union. The dealers and the importer are all domiciled in the Netherlands, the claim lodged against them that serves to protect similar interests of persons residing in the Netherlands who purchased a vehicle in the Netherlands is therefore not of an international nature. The Dutch court has jurisdiction with regard to that claim. Pursuant to Article 4(1) of the Brussels I Regulation Recast, the court has jurisdiction with regard to the claim for the benefit of buyers who do not reside in the Netherlands and who purchased their vehicle from a Dutch dealer. The Dutch court also has jurisdiction with regard to the car manufacturers in so far as the vehicle was purchased in the Netherlands, which jurisdiction can be derived from Article 7(2) Brussels I Regulation Recast (erfolgsort).

According to the District Court, no jurisdiction can be derived with regard to the claim aimed at protecting the similar interests of persons who purchased a vehicle in another country of the European Union. With regard to that claim, the District Court found that it had no jurisdiction on the basis of Article 8(1) Brussels I Regulation Recast due to a lack of a sufficiently close connection. Nor can jurisdiction with regard to that claim be derived from Article 7(2) Brussels I Regulation Recast; the place of the act (handlungsort) and the place where the damage occurred (erfolgsort) is not located in the Netherlands, according to the District Court.

The District Court subsequently gave an opinion on the applicability of the WAMCA. The WAMCA applies if the claim is lodged after 1 January 2020 and the harmful event or events occurred on or after 15 November 2016. The District Court finds that the initial, common and essential harmful event to which the legal claim and the proceedings pertain is, in this case, the putting in place of the illegal manipulation tool. That is why, according to the District Court, Article 3:305a (old) DCC applies in this case.

[1] Amsterdam District Court 22 June 2022, ECLI:NL:RBAMS:2022:3586

On 11 June 2022, the District Court of The Hague rendered judgment in proceedings instituted by Vereniging Verticaal Transport against the Dutch State.[1] In this judgment, the District Court emphasised the distinction between a class action and proceedings before the administrative court. According to established case law, in cases in which the legal protection of individual interested parties is assigned to the administrative court, a legal entity merely combining their interests cannot lead to said legal entity having access to the civil court. The same applies if, save for the combined interests, an interest group also stands up for a general interest in the protection of the rights of a larger group of persons that is diffuse and undefined. A collective interest that is derived solely from individual interests that can be represented in administrative proceedings is therefore not eligible for representation in a class action. The interest group is admissible in a class action if (i) the persons it represents do not have recourse to administrative law, including cases in which interested parties cannot be required to take the administrative law route, or in so far as it (ii) stands up for its own interest for which the interest group has no recourse to the administrative court. Vereniging Verticaal Transport was declared admissible for part of the claims. The association explicitly and repeatedly asserted in its summons that the proceedings were not based on a class action and that the claims in the summons should not be considered collective claims either. As a result, the District Court had to assess in each claim whether the association itself has a sufficient interest.

[1] District Court of The Hague 22 juni 2022, ECLI:NL:RBDHA:2022:5894

On 17 May 2022, the Court of Appeal of The Hague ruled on both the admissibility of Stichting Vredesbeweging PAX (“PAX”) and the substantive question of whether the Dutch State was not and is not allowed to export military goods to Egypt based on international obligations. [1]

With regard to PAX’s admissibility, the Court of Appeal ruled that the Preliminary Relief Judge had wrongly dismissed this, since PAX’s articles of association explicitly refer to the objectives of Stichting Interkerkelijk Vredesberaad and Vereniging Pax Christi Nederland and the objects clause in its articles of association covers the content of the present case. In line with the Preliminary Relief Judge, the Court of Appeal denied the substance of the claim. It had not been made sufficiently plausible that the military goods to be exported to Egypt would be used in the violation of human rights.

[1] Court of Appeal of The Hague, 17 May 2022, ECLI:NL:GHDHA:2022:834

In proceedings before the District Court of Noord-Holland on 26 April 2022, De Ondernemingsvereniging Bazaar (“the Association of Undertakings”) wanted to have access to the underlying documents of the service charges paid by the tenants to the Beverwijkse Bazaar (“De Bazaar”).[1] In addition, the Association of Undertakings sought a declaratory judgment that the percentage of administration costs should not exceed 5%, which was 15%. The Association of Undertakings stated that it was permitted to act in its own name on behalf of three anonymous undertakings that had rented space at De Bazaar (“the Undertakings”). According to the Association of Undertakings, it could do so as a collective representative, or as assignee, or as an authorised representative.

First of all, the Association of Undertakings asserted that it was entitled to bring claims on behalf of the Undertakings, since it represented the interests of these undertakings and had included this as an objects clause in its articles of association. According to the District Court, this could be considered an invocation of Article 3:305a of the Dutch Civil Code (DCC). The District Court ruled that the Association of Undertakings could not invoke Article 3:305a DCC because it had not been established that the Association of Undertakings was sufficiently representative. In addition, it could not be deduced from the documents that there was/were a supervisory body, sufficient financial resources, appropriate and effective mechanisms for participation in decision-making, a generally accessible website, sufficient experience and expertise. For that reason, according to the District Court, the interests of the Undertakings were insufficiently safeguarded.

The District Court then ruled on the question of whether this meant that the Association of Undertakings could be regarded an assignee. The District Court ruled that assignment could not relate to claims for the submission of documents and a claim for a declaratory judgment. These claims were not transferable under Article 3:94 DCC, because these are not personal claims, option rights or licence rights.

The Association of Undertakings was only declared admissible as the Undertakings’ authorised representative on the basis of powers of attorney. However, the claims lodged were dismissed by the court as De Bazaar had already sufficiently informed the Undertakings, and no specific reasons had been put forward as to why further information was justified. The proposal to reduce the service charges was also rejected; the Association of Undertakings has insufficiently substantiated its claim.

[1] District Court of Noord-Holland 26 April 2022, ECLI:NL:RBNHO:2022:3821