Q 2022 – Edition 2

On behalf of the team

Dear Reader,

The second quarter of 2022 saw many class action cases, especially in The Netherlands.

For example, the first Dutch interim judgment in a class action related to the diesel scandal was rendered. The court ruled that it has jurisdiction to hear the case against Mercedes-Benz, among others, with regard to victims who bought a car in the Netherlands, but not with regard to victims who bought their car in another European country. The court also ruled that the old collective action law should be applied. This quarter also saw two collective actions attempts to challenge Covid measures in the Netherlands, which both failed. The Dutch Catering Association attempted to claim damages for the measures imposed on Dutch horeca entrepreneurs, but  the court considered that the case involved such a diverse group of entrepreneurs and complex set of measures by the Dutch State that it was not possible to jointly adjudicate the claims of all entrepreneurs without assessing the specific circumstances. Regarding the case brought by the Stichting Viruswaarheid (Foundation Virus Truth), the court also ruled that the group on whose behalf the proceedings were initiated was too diverse to adjudicate. Moreover, the foundation has no legitimate interest in reversing approval of all COVID-19 vaccinations, which would also affect everyone in the Netherlands.

Another interesting case is the decision of the Amsterdam Court of Appeal in the case of several music distributors against BUMA/Stemra, the Dutch collecting society for musical compositions. The court ruled that BUMA/Stemra abused its dominant position because it applied different license conditions for its members than for streaming services. The court ruled that Buma must immediately take action to eliminate the inequality and Buma/Stemra must compensate all damage suffered. This judgment shows that collecting societies should counterbalance the demands of large streaming platforms.

There have also been developments in public law. Both the German Bundeskartellamt and the English CMA announced investigations into Google. In addition, the CAT left the CMA’s ruling against Meta (formerly Facebook) on the acquisition of ‘Giphy’ largely intact. The CMA found that Meta’s purchase of Giphy would reduce competition between social media platforms and had already removed Giphy as a potential challenger in the display advertising market in the UK. The CAT upheld 5 of the 6 challenged grounds and stated that the CMA was entitled to make its decision.

Louis Berger & Hans Bousie

With contributions of: Sophie van Everdingen, Tessel Bossen, Stefan Campmans and Nathan van der Raaij