On 5 January 2022, for the first time in French history, the Paris Court ruled against a professional entity in a class action. The grounds of the class action were based on the Public Health Code. The Association d’aide aux parents d’enfants souffrant du syndrome de l’anticonvulsivant (“APESAC”) is the association to act as plaintiff in this class action. This association represented families in which the mother took medication (including Depakine and its derivatives) for epilepsy during her pregnancy. It was later discovered that the use of this medication during pregnancy led to malformations and disorders of children exposed to the medication. The APESAC filed the class action against Sanofi-Aventis France (the manufacturer), which was followed by Sanofi-Aventis France summoning the ONIAM (the National Office for Compensation for Medical Accidents) and its insurer Allianz.

The French judges drew a few important conclusions: first, Sanofi-Aventis France had a duty of care towards children exposed to the medication. According to the Paris Court, Sanofi failed to comply with its duty of care, and therefore its duty of information. The fact that the medication works very well for the treatment of epilepsy does not detract from this. Already in 1984, Sanofi should have requested the national drug safety agency for a modification of the package insert for the medication Depakine (and its derivatives). This would have ensured that health professionals had the necessary information, which could have prevented pregnant women taking the medication. Until 2006, the possibilities of these malfunctions and disorders were not presented properly in the package insert of the medication. Accordingly, the product was not in line with the expected safety guidelines. Secondly, the Court concluded that Sanofi produced and marketed a defective product.

With respect to the participants in the class action, the Court sets out the criteria to be eligible to take part in the class action. The Court also ruled that plaintiffs can opt in to the class action within five years. APESAC will, on behalf of the plaintiffs, negotiate the amount of compensation. It is up to the Court to approve the settled compensation. The Court of Paris further ruled that the plaintiffs are entitled to a 95% loss of opportunity to choose a less dangerous therapeutic alternative and ordered both Sanofi and Allianz to pay a provision of € 120.000 to cover the future costs of the class action procedure.

By ruling of 31 March 2022,^[1]Competition Appeal Tribunal 31 March 2022, [2022] CAT 16, Case Nos: 1329/7/7/19 and 1336/7/7/19. the CAT refused to grant certification to either one of two competing proposed collective claims relating to the forex cartel.^[2]European Commission decisions of 16 May 2019, Cases AT.40135 (Three Way Banana Split) and AT.40135 (Essex Express). Both O’Higgins and Evans had applied for an opt-out collective proceedings order (CPO), seeking to combine follow-on claims for damages arising from the said cartel. The CAT assessed whether the level of generality or abstraction contained in the proposed claims were sufficient to amount to “reasonable grounds for making the claim”^[3]Within the meaning of rule 41(1)(b) of the Tribunal Rules., and concluded that the CAT had “no doubt this test is not met and the both Applications could be struck out (…)”. Both applicants may, however, submit revised applications for certification.

On 14 January 2022, the CAT issued a third judgment in the mass claim proceedings of Walter Hugh Merricks CBE against Mastercard. Merricks is the representative of a class seeking damages from Mastercard for violating competition laws in relation to the setting of multi-lateral interchange fees (“MIFs”),[1] for which unlawful conduct Mastercard was fined by the European Commission (EC) in 2007. Since Merricks was granted a Collective Proceedings Order (CPO) for opt-out proceedings by the CAT’s 18 August 2021 decision, it was necessary for the order to specify the “domicile date”.

The “domicile date” has to be specified in the CPO for the purposes of determining whether a person is domiciled in the UK. A key element of opt-out claims is that claimants who fall within the class and who are domiciled within the UK are automatically included in the class unless they opt out. Because of the specific way the class was defined in the claim order in this case, the determination of the domicile date had even further implications.

Merricks sought a determination that the domicile date should be 6 September 2016, being the date the claim form was issued. Mastercard submitted that the domicile date should be 18 August 2021, when the decision to grant the CPO was made. If Merricks were to prevail, that would mean that all persons being alive on 6 September 2016 but who had died prior to the CPO date would be included in the class (by the personal/authorised representative of their estate). If Mastercard were to prevail, this entire group would be excluded.

Because of the size of the proposed class (potentially 46.2 million people) and the extended duration of almost five years between the issue of the claim form and the decision to grant a CPO, this issue was of particular importance in this case. The preservation of approximately 3 million claims was at stake.

The CAT sided with Merricks and ruled that the domicile date should be specified as the claim form date, i.e. 6 September 2016. However, the CAT also made clear that it reached this conclusion based on the specific circumstances of this case and that it considers it undesirable for future applications for the class definition to depend on the domicile date.

[1] MIFs are fees charged between banks for transactions using Mastercard-issued credit and debit cards.

On 31 March 2022, the summons of Stichting Nuon-claim versus Vattenfall et al. (formerly Nuon) was registered in the central register for collective claims.^[1] The object of Stichting Nuon-Claim is to promote the interests of large-scale users (these are often small and medium-sized enterprises) that have suffered damage as a result of Vattenfall et al. According to the foundation, this damage was caused because Vattenfall et al. wrongly charged its large-scale users a kW fee. This fee usually pertains to the provision of the maximum network capacity that the customer needs at any time. Because this service is only provided by a grid manager, Vattenfall et al., as a supplier, cannot charge these costs.

In this class action, the foundation is therefore claiming, inter alia, payment by Vattenfall et al. of the amounts that the injured parties paid to Vattenfall et al. in kW fees during the relevant period. This amount is estimated at more than € 400,000,000. The claim is primarily based on unlawful act; Vattenfall et al. violated their duty of care, and in addition, it made misleading statements. Alternatively, the foundation bases its claim on undue payment and, as a third alternative, on breach of contract.

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBAMS-dagvaarding-collectieve-vordering-Vattenfall-cs.pdf

On 30 March 2022, the Amsterdam District Court rendered judgment in the case of Stichting Diesel Emissions Justice versus Volkswagen et al. ^[1]Amsterdam District Court 30 March 2022, ECLI:NL:RBAMS:2022:1541 In this dispute, the foundation is claiming, inter alia, damages from Volkswagen et al. because it manufactured and sold diesel cars with “cheating” software. In this judgment, the District Court rendered a decision on jurisdiction and applicability of the WAMCA.

Because this dispute contains international aspects (defendants domiciled in various EU countries), the District Court is obliged by law to first decide whether it has jurisdiction to assess the substance of the claims. The claims of the foundation involve the peculiarity that not all the claims have been lodged against all the defendants for the benefit of the same groups of persons whose interests the foundation claims to 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. These defendants can act as anchor defendant with regard to the claim against the car manufacturers and the software manufacturer that serves to protect the similar interests of persons who purchased a vehicle in the Netherlands; after all, there is a sufficiently close connection between the aforementioned claims. According to the District Court, this close connection is lacking 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 finds that it has no jurisdiction on the basis of Article 8(1) Brussels I Regulation Recast. Nor can jurisdiction with regard to that claim be derived from Article 7(2) Brussels I Regulation Recast, because the place of the act (handlungsort) and the place where the damage occurred (erfolgsort) is not located in Amsterdam, 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.

On 30 March 2022, the Amsterdam District Court rendered judgment in the case of Stichting Diesel Emissions Justice versus FCA et al. ^[1]Amsterdam District Court 30 March 2022, ECLI:NL:RBAMS:2022:1541 In this dispute, the foundation is claiming, inter alia, damages from FCA et al. because it manufactured and sold diesel cars with cheating software. In this judgment, the District Court rendered a decision on jurisdiction and applicability of the WAMCA.

Because this dispute contains international aspects (defendants domiciled in various EU countries), the District Court must assess of its own motion whether it has jurisdiction to assess the substance of the claims. FCA N.V. (parent company), FCA NL and the dealers are all domiciled in the Netherlands. Consequently, there is no international connection for the legal claims instituted by the foundation that serve to protect the persons residing in the Netherlands. The legal claims instituted by the foundation that serve to protect persons who are not resident in the Netherlands do, however, involve an international aspect. Since FCA N.V., FCA NL and the Dealers are domiciled in the Netherlands, the international jurisdiction of the Dutch court in this respect is based on Article 4(1) Brussels I Regulation Recast. The international jurisdiction of the Dutch court with respect to FCA Italy and Alfa Romeo (domiciled in Italy) must also be determined based on the Brussels I Regulation Recast. According to the District Court’s opinion, jurisdiction can be derived with regard to FCA Italy and Alfa Romeo on the basis of Article 8(1) Brussels I Regulation Recast because FCA N.V. can be qualified as anchor defendant; the claims against the various defendants are sufficiently related, whereby it was not unforeseeable for FCA Italy and Alfa Romeo that they would be summoned in the Netherlands, since this is the country where their parent company has its registered office. The District Court therefore declares that it has jurisdiction with regard to all defendants.

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 development of the illegal manipulation tool. According to the District Court, it has not been sufficiently asserted or demonstrated that this activity also took place after 15 November 2016, as a result of which Article 3:305a (old) DCC applies in this case.

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 16 February 2022, the District Court of Amsterdam ruled in a case between the foundation Stop Online Shaming (the “Foundation”) and a pornography website called vagina.nl (the “website”), which shows graphic content of persons who are not aware of this and have not consented to this.^[1]District Court of Amsterdam 16 February 2022, ECLI:NL:RBAMS:2022:557

The case concerns the question of whether the website is liable for the unlawful content published by users on the website. In this case, the Foundation acts as the exclusive representative for the alleged victims of unlawful content (persons who appear in the content without their explicit consent).

The District Court opens its decision with the conclusion that the exemption from platform liability does not apply. According to Article 6:196c of the Dutch Civil Code (and the e-Commerce Directive), this exemption does not apply when the platform knows or should reasonably know that the information published is unlawful. If the platform actively intervenes – i.e. by preselecting the content – the platform is considered to have knowledge of the content and the liability exception does not apply. According to the District Court, the explanation given by the website at the hearing shows that the website does preselect content. A video of a forest that the Foundation tried to upload was not published by the website. According to the District Court, this too shows that the website preselects content.

Subsequently, the District Court rules on the question of whether the website acted unlawfully.  According to the District Court, it is unlawful to publish content on an adult website if that content shows recognisable persons who are (completely or partly) naked and that content has been secretly filmed in places where these persons thought they were unobserved. Furthermore, it is unlawful to publish content on these websites that is not professionally produced and shows recognisable persons performing sexual acts in private, unless those persons consent to the publication of the content. Vagina.nl is therefore ordered to remove all unlawful content and pay damages to the victims.