On 6 May 2021, Advocate General Michal Bobek issued an Opinion in one of the cases concerning the air cargo cartel.[1] The Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands instituted proceedings against British Airways, KLM and other airlines after the European Commission established in 2010 that the airlines had made prohibited price agreements with regard to cargo shipments prices. The AG’s Opinion pertained in particular to the question of whether damage could also be claimed for the period prior to 2004, when important competition law came into force. According to the airlines, Articles 104 and 105 TFEU would result in the national courts not having jurisdiction to rule on antitrust damages cases from that period. Advocate General Bobek did not concur with this and thus concluded that national courts could also rule on antitrust damages claims dating from before 2004.

[1]              Advocate General M. Bobek, 6 May 2021, case C-819/19 (Stichting Cartel Compensation and Equilip Netherlands/KLM et al.)

The adoption of the Amendment of the member of the House of Representatives Van Gent resulted in the WAMCA not only applying to collective claims relating to events that occurred after 15 November 2016 (the date on which the initial bill of the WAMCA was presented to the House of Representatives), but also to events that occurred before that date, provided that they continued after that date.

In its summons in proceedings against Renault S.A.S., Stichting Emission Claim (the Foundation) asserted that the software updates that would remove the non-conformity of the vehicles equipped with fraudulent software took place after 15 November 2016. Furthermore, even after the updates, emissions from the engines did not remain below the limit under all circumstances. As a result, the Foundation argued, the obligation of the car manufacturers, importers and dealers to end the fraud in connection with the vehicles marketed in the Netherlands before 15 November 2016 continues to this day. With this summons, the Foundation is therefore seeking, briefly put, collective damages for the loss suffered by the injured parties of the diesel fraud committed by Renault and Bosch in the Netherlands and a number of declaratory judgments regarding the consequences of this diesel fraud under the WAMCA.

On 25 November 2020, the Amsterdam District Court rendered an interlocutory judgment in a case between four government bodies in the Gulf States of Bahrain, Saudi Arabia, Kuwait and Oman ^[1]Electricity & Water Authority of the government of Bahrain (Bahrain), GCC Interconnection Authority (Saudi Arabia), Kuwait Ministry of Electricity and Water (Kuwait) and Oman Electricity … Continue reading on the one hand and 15 legal entities involved in groups of Prysmian, ^[2]The defendants are Prysmian Netherlands B.V., Draka Holding B.V., and Prysmian Cavi e Sistemi S.R.L ABB, ^[3]The defendants are ABB B.V., ABB Holdings B.V., ABB AB, and ABB Ltd. Pirelli,^[4]The defendant is Pirelli & C S.p.A. Goldman Sachs ^[5]The defendant is The Goldman Sachs Group, Inc. and Nexans ^[6]The defendants are Nexans Nederland B.V., Nexans Cabling Solutions B.V., Nexans Participations S.A., Nexans S>A. and Nexans Franse S.A.S. on the other. ^[7]Amsterdam District Court 25 November 2020, ECLI:NL:RBAMS:2020:5882.

The backdrop is the power cable cartel whose existence was established by the European Commission in 2014. ^[8]Decision of the European Commission of 2 April 2014 in case AT.39610 (‘Power Cables’). The European Commission established that European, Japanese and South Korean manufacturers of underground and submarine power cables had divided power cable projects between themselves between 18 February 1999 and 29 January 2009. The defendants are (indirectly) connected to the addressees of the Commission decision.

The claimants of the Gulf States are seeking a declaratory judgment that the defendants acted unlawfully because they participated in the cartel, or that the knowledge of the parent companies addressed must be imputed to them. In separate ancillary actions, the defendants are seeking that the District Court decline jurisdiction.

The District Court partially concurred with the defendants in this respect. It held that, although it had jurisdiction to rule with regard to the Dutch defendants, this was not the case for the foreign defendants. Nor could the Dutch defendants serve as anchor defendants. The first requirement of a sufficiently close connection between the claims had not been satisfied. The mere fact that the Dutch defendants are (indirectly) connected with the addressees of the decision did not mean that they were also involved in the infringement under competition law or that parent companies’ liability could be imputed to them. The District Court therefore deemed itself to lack jurisdiction with regard to the foreign defendants.

On 21 October 2020, MarktOnderzoekAssociatie.nl (MOA), a market research association, requested the District Court to declare that regulations and policy rules pertaining to the remit of Statistics Netherlands are non-binding. Not only do MOA members receive data from Statistics Netherlands: they also compete with Statistics Netherlands, particularly in respect of contracts for government authorities. Because the State is providing it with less fixed annual compensation, Statistics Netherlands is focusing more on commercial contracts for government authorities. In MOA’s view, according to the legislative history such activities are only permitted on an occasional basis, and the current situation constitutes unfair competition for the MOA members. One of the arguments for conducting this case as a class action is that the members involved would prefer to remain anonymous because they fear the wrath of Statistics Netherlands and the government authorities as the supplier of data and contracts. MOA discusses its locus standi requirements relatively extensively, but states that it does not have to comply with the locus standi requirements in Article 3:305a(2) and (5) of the Dutch Civil Code, because it is pursuing an objective of principle. ^[1]Summons against the State of the Netherlands (Ministry of Economic Affairs and Climate Policy) (in Dutch

In October 2020, on behalf of affiliated IP rightsholders, the BREIN foundation instituted an injunction action against ExpatsIPTV, claiming that its streaming services infringe IP rights. In that respect, BREIN asserted that it did not have to comply with the locus standi requirements from Article 3:305a (2) and (5) of the Dutch Civil Code because it was pursuing an objective of principle and was not seeking damages. ExpatsIPTV had taken its website offline following previously granted preliminary relief. According to BREIN, this class action in the form of proceedings on the merits was necessary because ExpatsIPTV had not provided a sufficient undertaking to the effect that it would cease the services. BREIN is also seeking a great deal of information and substantiation regarding the alleged infringements, the parties involved and the proceeds of the infringements. Such proceeds could prompt subsequent actions for damages. ^[1]Summons against ExpatsIPTV (in Dutch)