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

Association the Woonbond has initiated litigation against the Dutch State regarding an act which aims to combat “scheefwonen” – the situation where a person with a much too high income rents a relatively cheap house.[1] Based on this act, house owners (landlords) may increase rent dependent on the income of the tenant. For this purpose, landlords may request data about the income of tenants from the tax authorities. According to the Woonbond, the tax authorities violate(d) privacy laws by providing income data of tenants to landlords and the Woonbond aims to obtain a statement of law on the basis of the (old) WCAM that it is indeed unlawful.

On 1 April 2022, the Advocate-General gave his opinion in the case, which is pending before the Supreme Court. According to the Advocate-General:

• The Woonbond is admissible. The State argued that tenants could individually aim request the tax authorities not to provide their income data and if necessary enforce this through administrative procedures. Administrative procedures have priority over civil procedures. The Advocate-General argues however that this would be overly cumbersome. Therefore, the Woonbond may litigate in civil proceedings.
• The provision of tax data was unlawful in a certain period between 2013-2016. Tax authorities have a duty of confidentiality regarding income data and there was no legal basis to provide this income data. After 2016, this legal basis was created and therefore the provision of income data became lawful.
• No damages were claimed so there is no obligation for the state to pay damages for the unlawful provision of income data in the period 2013-2016.

The advice of the Advocate-General is mostly interesting as it shows that matters that could theoretically be litigated in individual cases before the administrative court, may sometimes be litigated in civil proceedings on the basis of the WCAM (or now WAMCA).

[1] Procurator General of the Supreme Court, 1 April 2022, ECLI:NL:PHR:2022:346

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.

On 8 February, the ICAM Foundation and six individuals launched a collective action against the Dutch State, more specifically the Dutch Minister of Health, Welfare and Sport (hereinafter the “State”), with regard to a data breach that took place at the Dutch Public Health Service (“GGD”).^[1]https://icamcdn.linuxpingops.nl/datalek-ggd.nl/wp-content/uploads/2022/02/20220208_DEF_ANONIEM_Brief_aan_de_Staat_der_Nederlanden_inzake_GGD-datalek_ICAM_c.s._vs_De_Staat_c.s..pdf The Minister of Health, Welfare and Sport is responsible for the IT systems of the GGD. The data breach resulted from the abuse of private data that Dutch citizens had shared with the GGD for the purpose of making a coronavirus vaccination or test appointment, or for the purpose of source and contact testing. Due to a lack of security, call centre employees were able to view and download bulk sensitive information, such as citizen service numbers (BSN), health data and address details. As a result of the data breach, the personal data of at least 6.5 million people were accessible and available for illegal data trafficking. It has been established that the personal data of at least 1,250 people were actually stolen and probably sold.

The ICM Foundation represents the Dutch victims both on the basis of WAMCA and on the basis of participation agreements. The ICAM Foundation, as well as the individual claimants, holds the State liable for the damage suffered by the victims. In addition, the ICAM Foundation summons the State to take adequate measures to prevent this type of incident from recurring in the future.

The class action is based on the grounds that there was a violation of the principle of data minimisation of Article 5 GDPR, the principles of privacy by design and privacy by default of Article 25 GDPR, the security obligation as laid down in Article 32 GDPR and the NEN 7510 standard for information security in healthcare, the Medical Treatment Contracts Act and the Act on Additional Provisions for Processing Personal Data in Healthcare.

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 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

On 23 November 2021, the District Court of The Hague rendered judgment in preliminary relief proceedings against the State initiated by (i) an anonymised foundation and (ii) an individual claimant.[1] In a class action suit, the foundation is demanding that the corona measures as they applied until 25 September 2021 must again apply or instead that the State must require a negative test result of everyone (including those who have been vaccinated) for a COVID certificate. The State disputes the admissibility of the foundation’s claim.  The foundation is asking the court to apply the exception of Article 3:305a(6) DCC, as a result of which less stringent admissibility requirements would apply.

The District Court concludes that the foundation has failed to appreciate that it must also comply with the requirements of paragraph 1 and the opening words of paragraph 2 if Article 3:305a(6) is applied. In this case, the persons represented by the foundation are so small in number that there is no question of the ‘representativeness’ required to be able to pass the admissibility threshold. In addition, it has not been sufficiently demonstrated how the claim relates to the foundation’s objective, as set out in its articles of association. The conclusion is therefore that the admissibility requirements of Article 3:305a DCC have not been satisfied. The foundation’s claim is therefore inadmissible.

The individual claimant’s claims are however admissible. Said claimant has asserted that the State is not complying with its duty of care. The court ruled that the State has great discretion in taking measures to combat COVID. Only if the State is obviously making incorrect choices is there room for judicial intervention. The Preliminary Relief Judge holds that the State made no obviously incorrect choices. In this case, the public interest – which forms the basis for the choices made by the State, with the State performing a complex weighing of all the interests at issue for the benefit of the entire population – clearly prevails over the claimant’s individual interest. The claims are therefore denied.

[1]District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12811

On 8 November 2021, the Amsterdam District Court rendered judgment on the claim against Royal Air Maroc of ANVR and individual travel agents who are members of IATA.[1] ANVR is an association whose members are individual companies in the travel field. Several Royal Air Maroc flights were cancelled on account of the COVID pandemic. Going against a European Commission recommendation, Royal Air Maroc informed passengers that compensation would be given exclusively in the form of vouchers. They are seeking, among other things, a declaratory judgment to the effect that Royal Air Maroc’s conduct is unlawful and that passengers are entitled to timely reimbursement. In these proceedings, ANVR represents its members and individual travellers who have granted it a power of attorney to act as their authorised representative.

ANVR’s claim on behalf of the individual claimants was declared inadmissible because the association had failed to submit copies of identity documents, as a result of which it could not be verified whether the authorisation forms were actually signed by the passengers in question. Accordingly, ANVR has insufficiently substantiated that it was authorised to lodge the claim on behalf of the individual passengers as well. ANVR’s claim on behalf of its members was declared admissible; they have a sufficient interest in having the claims upheld because they have suffered damages. This damage has been caused by the fact that Royal Air Maroc refuses to refund.. Among other things, the court issued a declaratory judgment to the effect that the policy observed by Royal Air Maroc with regard to vouchers and refunds is unlawful because it denies the passenger the choice between an alternative flight or reimbursement.

[1]District Court of Amsterdam 8 November 2021, ECLI:NL:RBAMS:2021:6461

On 19 October 2021, the summons in preliminary relief proceedings of International Air Transport Association (IATA) v. Airport Coordination Netherlands (ACNL) was entered into the central register for class actions.[1] IATA is an association of airlines that promotes the interests of the aviation industry and the interest of free and efficient aviation. It has committed itself worldwide to compliance with slot allocation regulations. ACNL is a legal entity under public law to which legal personality has been conferred pursuant to Article 8a.64(2) of the Aviation Act (Wet luchtvaart). It has implemented a new policy rule for the allocation of slots at the Dutch airports Schiphol, Eindhoven and Rotterdam-The Hague.

IATA wishes to prevent ACNL from interfering, without having the power to do so, by means of a policy rule (Policy Rule Additional Allocation Criteria), with the free choice of airlines to fly routes to and from Dutch airports. IATA asserts that the policy rule has a highly negative effect on the worldwide system of slot allocation (or at least the European part thereof). It is also against the law and unlawful vis-à-vis IATA and its members. This is because by doing so, ACNL is infringing on the division of powers ensuing from European regulations.

IATA therefore requests that the Preliminary Relief Judge prohibit ACNL from implementing the policy rule. It also argues that ACNL itself adopted this policy rule without having it assessed and approved by the European Commission.

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBNHO-international-air-transport-association-vs-airport-coordination-netherlands.pdf