On 6 April 2022, the District Court of The Hague rendered judgment in a case between the association Koninklijke Verbond van Ondernemers in het Horeca en Aanverwant Bedrijf (“Horeca Nederland”) and the Dutch State.[1] As a result of the COVID-19 pandemic, hospitality establishments in the Netherlands had been ordered to close and various restrictive measures had been taken. Due to the closures and restrictions, hospitality establishment owners had suffered damage. In this class action, Horeca Nederland sought, inter alia, a declaratory judgment that the Dutch State had acted unlawfully towards all hospitality establishment owners in the Netherlands.

Under Dutch law, the substance of a class action can only be examined if, inter alia, a collective claim is more efficient and effective than lodging individual claims (Article 1018c(5)(b) DCCP). This is where the case went wrong for Horeca Nederland.  The District Court did not consider it sufficiently plausible that the collective claim was more efficient and effective than lodging an individual claim. The District Court considered it important to determine to what extent the impact of the closures and the measures for the various hospitality establishment owners was the same. The Dutch State argued that the hospitality establishment owners were not a homogeneous group, and that the restrictions and closures had a different impact on the various types of hospitality establishment owners. However, Horeca Nederland was of the opinion that the special circumstances could be abstracted from.

The District Court ruled that, as the hospitality establishment owners had suffered various disadvantages from the restrictions and closures, the question of unlawfulness could not be answered in general. According to the District Court, this involved such a diverse group of entrepreneurs and complex set of measures and conduct by the Dutch State that it was not possible to jointly adjudicate the claims of all entrepreneurs without assessing the specific circumstances. For that reason, the District Court declared Horeca Nederland’s collective claims inadmissible.

[1] District Court of The Hague 6 April 2022, ECLI:NL:RBDHA:2022:3182