We’re proud to present an entirely revamped Q Class Actions Update.
And if we may say so ourselves, we think it’s a great improvement.
Firstly, from this quarter onwards, class actions in the broad sense of the term will take centre stage. Not least because class actions are a hot topic across the globe at the moment. Particularly so in the Netherlands, where, for example, numerous cases are being initiated pursuant to new legislation. We will monitor the resulting slew of case law for you. And of course, we’ll continue to focus on developments related to cartel damage.
Secondly, Q is now presented in website format, not only making it more of a pleasure to read but also enabling readers to consult it as a source of information. Many will find the easily-searchable database useful. We’re pleased to contribute in this way to further developments in the field of class actions.
Louis Berger & Hans Bousie
One-and-a-half years after its forcement, the Settlement of Large-scale Losses or Damage (Class Actions) Act (Wet afwikkeling massaschade in collectieve actie, “WAMCA“) is now (tentatively) starting to take shape in practice. The legislature left quite some room for interpretation, with the details now being increasingly fleshed out in case law. A number of judgments rendered in the fourth quarter of 2020 provided further clarification. These offer useful guidance on interpreting the stricter locus standi requirements for interest groups in the context of Article 3:305a of the Dutch Civil Code. The decisions published show that the higher threshold must certainly not be underestimated, requiring proper substantiation from the interest group in question. For example, several cases fell at the first hurdle because they failed to meet the higher threshold for a right of action.
In Europe, too, there were various developments regarding class actions in the fourth quarter of 2020. The Supreme Court of the United Kingdom, for example, rendered a long-awaited judgment in Merricks v. Mastercard, and an opinion of the Advocate General was published in a case in which preliminary questions were put to the European Court of Justice regarding jurisdiction in class actions. In addition, a high-profile class action against TikTok was launched on behalf of millions of child users in the United Kingdom and the European Economic Area, while various actions are ongoing in connection with the accounting scandal surrounding the German company Wirecard. Finally, a new Directive on representative actions for the protection of the collective interests of consumers was introduced at European level. This Directive will bring about various (radical) changes to class actions within the European Union. In short, there were new developments in abundance in this fourth quarter.
In the cartel case field, never a month goes by without further developments. This quarter was no exception. Here is a small selection of the cases discussed.
In Germany, the UK and the Netherlands, there were further developments regarding the trucks cartel. For example, a substantive hearing took place in the Netherlands in the first wave of cases against the truck manufacturers. The German court in Hanover put questions to the ECJ regarding whether rubbish and fire trucks are also covered by the cartel. The answer to these questions will be relevant for all jurisdictions.
The jurisdiction of the court in cross-border cases is also a recurring topic. This time around it was relevant in power cable cartel proceedings initiated by a number of Gulf States against power cable manufacturers established in various countries. In the case in question, the Amsterdam District Court ruled on its jurisdiction with regard to foreign defendants and Dutch anchor defendants. The District Court held that the mere fact that a foreign defendant had a Dutch subsidiary was not sufficient to justify use of the Dutch subsidiary as a gateway to the Dutch court. And the CJEU ruled in response to a question put to it by the German Bundesgerichtshof that, as the harmful event occurred in the claimant’s country, Booking could be sued there for market abuse committed by it.