The Netherlands

On behalf of the team

In proceedings before the District Court of Noord-Holland on 26 April 2022, De Ondernemingsvereniging Bazaar (“the Association of Undertakings”) wanted to have access to the underlying documents of the service charges paid by the tenants to the Beverwijkse Bazaar (“De Bazaar”).[1] In addition, the Association of Undertakings sought a declaratory judgment that the percentage of administration costs should not exceed 5%, which was 15%. The Association of Undertakings stated that it was permitted to act in its own name on behalf of three anonymous undertakings that had rented space at De Bazaar (“the Undertakings”). According to the Association of Undertakings, it could do so as a collective representative, or as assignee, or as an authorised representative.

First of all, the Association of Undertakings asserted that it was entitled to bring claims on behalf of the Undertakings, since it represented the interests of these undertakings and had included this as an objects clause in its articles of association. According to the District Court, this could be considered an invocation of Article 3:305a of the Dutch Civil Code (DCC). The District Court ruled that the Association of Undertakings could not invoke Article 3:305a DCC because it had not been established that the Association of Undertakings was sufficiently representative. In addition, it could not be deduced from the documents that there was/were a supervisory body, sufficient financial resources, appropriate and effective mechanisms for participation in decision-making, a generally accessible website, sufficient experience and expertise. For that reason, according to the District Court, the interests of the Undertakings were insufficiently safeguarded.

The District Court then ruled on the question of whether this meant that the Association of Undertakings could be regarded an assignee. The District Court ruled that assignment could not relate to claims for the submission of documents and a claim for a declaratory judgment. These claims were not transferable under Article 3:94 DCC, because these are not personal claims, option rights or licence rights.

The Association of Undertakings was only declared admissible as the Undertakings’ authorised representative on the basis of powers of attorney. However, the claims lodged were dismissed by the court as De Bazaar had already sufficiently informed the Undertakings, and no specific reasons had been put forward as to why further information was justified. The proposal to reduce the service charges was also rejected; the Association of Undertakings has insufficiently substantiated its claim.

[1] District Court of Noord-Holland 26 April 2022, ECLI:NL:RBNHO:2022:3821