The Netherlands

On behalf of the team

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