On 24 February 2022, Advocate General Medina gave an opinion in a case of the German region Landkreis Northeim versus truck manufacturers Daimler, Iveco and MAN with regard to the truck cartel.^[1]AG Medina, 24 February 2022, case C-588/20 (Landkreis Northeim v Daimler et al).In German proceedings, the German region also sought compensation of damage for two waste vehicles, while the truck manufacturers asserted that these were not covered by the decision of the European Commission of 19 July 2016^[2]Decision of the European Commission of 19 July 2016. and it has therefore not been established for these trucks that cartel arrangements were made for this. The question currently before the Court of Justice for a preliminary ruling is whether, in addition to ‘ordinary’ trucks, also special purpose vehicles, such as waste vehicles and fire department vehicles, are covered by the decision. The Advocate General concludes that all specialised vehicles except vehicles for military purposes are covered by the decision of the European Commission. If the Court of Justice follows this opinion, damages can also be claimed for these special purpose trucks.

On 29 March 2022, there was a hearing at the district court of Amsterdam in the first group of cases relating to the truck cartel, in which 15 claimants instituted proceedings against DAF, Daimler, Iveco, MAN, Volvo/Renault and Scania. Two interlocutory judgments have already been rendered in the first group. The hearing in March concerned the admissibility of the claimants’ claim and the validity of the assignments, the applicable law and the offer by the trucks manufacturers to provide documents. On 13 July 2022, the District Court will rule on these topics and decide how the proceedings will be continued.

On 8 March 2022, the England and Wales High Court issued its judgment in SMOv TikTok Inc. and others.^[1]SMO (a child) (by their litigation friend (acting as a representative claimant pursuant to CPR 19.6) ) v TikTok Inc. and others [2022] EWHC 489 The case concerned a representative claim brought by a child and her litigation friend, the (now former) Children’s Commissioner for England, on behalf of a class of children under the age of 16 who use or have used TikTok in the UK. According to SMO, TikTok invades the privacy of children and misuses their private information, in violation of the Data Protection Act 2018 and the UK GDPR. The defendants are six TikTok entities within various jurisdictions.

To start the case, SMO sent one letter of claim to all defendants, without the required pre-action correspondence. SMO did so in expectation of Supreme Court’s judgment in Lloyd v. Google (discussed in Q4 2021). SMO then requested a stay of proceedings, awaiting the outcome of Lloyd v. Google, which was granted by the High Court. This meant that SMO had until 30 December 2021 to serve out the claim (the required pre-action correspondence) to the foreign TikTok entities. SMO did not, however, succeed in serving the entities in the United States and China within this timeframe.

The question before the High Court now was whether SMO could be granted a (further) extension to serve the claim to these entities.  The High Court refused to grant this request because SMO did not provide a valid reason to have postponed serving the other entities. As a result, SMO only successfully served two out of the six defendants. Namely, TikTok Information Technologies Limited and TikTok Technology Limited, based in the United Kingdom and Ireland.

On 23 February 2022, the Amsterdam District Court ruled that a foundation as claimant cannot act simultaneously as mandatary and as representative within the meaning of Article 3:305a DCC.^[1]Amsterdam District Court 23 February 2022, ECLI:NL:RBAMS:2022:753 In this case, Stichting Bouwfonds Claim is seeking a declaratory judgment entailing that Bouwfonds Fund Management B.V. made misleading statements in its advertising brochure and prospectus and that Bouwfonds must compensate these damages for that reason. In this case, the Foundation acts both as a collective representative within the meaning of Article 3:305a DCC and as mandatary. The District Court finds that this means that in its actions as a 305a foundation, the Foundation is both the litigant and the litigant with a legal interest that promotes the collective interest of the collective investors. Since the Foundation is, as mandatary, exclusively the litigant that promotes the individual interests, this leads to a number of problematic relationships.

First, for example, a claim lodged by the Foundation as 305a foundation has interrupting effect with regard to the prescription of the claims of the collective. A claim that it lodges as mandatary only has interrupting effect with regard to the prescription of the claims of the mandators it represents at that time. In addition, the basis for the damages becomes complex in a situation in which the Foundation, in its capacity as 305a foundation, is subject to a statutory prohibition against seeking damages, while it can indeed claim damages in its capacity as mandatary. The District Court therefore concludes that the Foundation cannot, as one and the same claimant, act simultaneously as both mandatary and as 305a foundation. The Foundation’s claim is therefore declared inadmissible.

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 10 November 2021, the Supreme Court of the United Kingdom issued its long-awaited decision in the Google/Lloyd case.[1] The proceedings took place on the basis of the ‘representative action’ system, in which a representative member of the group litigates on behalf of the group (par, 3-5, 25). Lloyd litigated against Google on behalf of Google users for violations of privacy laws.

According to the Supreme Court, this representative action is not suitable for damage arising from privacy breaches because it requires the damage to be determined concretely and individually. The exact damage of each Google user differs per case and cannot be estimated. Therefore, the claim cannot succeed (par. 80, 86-87, 115 & 159). The Supreme Court did consider that in such cases of mass damage in the digital context, a collective action is the only possibility ‘to come at justice’ (par. 67). However, English law does not offer this possibility. The outcome of the case will likely affect a number of related privacy violation cases, all based on the system of representative action.

[1] UK Supreme Court 10 November 2021, 2019/0123 (Google/Lloyd)

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