NETHERLANDS Trends and Developments Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
The Amsterdam Court of Appeal ruled in similar vein in the Fiat Chrysler Dieselgate collective action and the collective action against Oracle and Salesforce. In the three cases, the Court of Appeal also granted leave to appeal its judgments with the Dutch Supreme Court. This led the district court to stay the collec- tive action against Oracle and Salesforce after it had been remitted to it by the Court of Appeal. The Dis- trict Court held that because it depends on the out- come of the appeal in cassation whether the interest organisation pursuing the class action (The Privacy Collective – TPC) is admissible, it would be contrary to due process of law to continue the proceedings in the first instance. After all, should TPC eventually be found inadmissible, all further procedural acts would be completely unnecessary, according to the District Court. The relationship between the WAMCA and the GDPR in data privacy litigation In its collective action against Amazon, Stichting Data Bescherming Nederland (SDBN) had in part based its claims on the GDPR. The Rotterdam District Court noted that, like the WAMCA, the GDPR imposes admissibility requirements on interest organisations. The court found that to a large extent these require- ments under the WAMCA and the GDPR run parallel, but that interest organisations in the Netherlands are subject to additional requirements under the WAM- CA (as opposed to the GDPR). The court questioned whether the WAMCA thus hinders the effective opera- tion of the GDPR. Furthermore, the court noted that: • pursuant to Article 80 (1) of the GDPR, a data subject shall have the right to mandate an inter- est organisation to exercise the rights referred to in Articles 77, 78 and 79 of the GDPR on his or her behalf, and to exercise the right to receive com- pensation referred to in Article 82 of the GDPR on his or her behalf; and • pursuant to article 80 (2) of the GDPR, member states may provide that an interest organisation, independently of a data subject’s mandate, has the right to exercise the rights referred to in Articles 78 and 79 of the GDPR.
In view of the fact that Article 80 (2) of the GDPR does not refer to the right to receive compensation (Article 82 of the GDPR), the court questioned whether Article 80 of the GDPR precludes a claim for damages in opt- out WAMCA proceedings on the basis of the GDPR, in which the injured persons have not (yet) explicitly mandated the interest organisation to exercise this right on their behalf. The court referred both questions to the Court of Jus- tice of the European Union for a preliminary ruling. The collective action against Google, in which simi- lar questions were at issue, has been stayed by the Amsterdam District Court awaiting the judgment of the CJEU. The same goes for SDBN’s collective action against Oracle at the Rotterdam District Court. Admissibility alongside an interest organisation An essential feature of the WAMCA is that there is, eventually, an exclusive representative (the Dutch law equivalent of the lead plaintiff in US class actions) that acts on behalf of the entire group of injured persons. This has raised the question whether others can also lodge a claim in proceedings on the basis of the WAM- CA, alongside the interest organisation. In a collective action brought by Greenpeace on behalf of the people of Bonaire, the Hague District Court held this not to be the case for individual persons whose interests the interest organisation is seeking to pro- tect. The Court found that, when devising the WAM- CA, the legislature assumed that individual claimants (with claims similar to those made by the interest organisation) cannot be a party to the proceedings. According to the Court, the WAMCA only allows for other interest organisations to become involved in the proceedings, after which one of them is appointed as the exclusive representative. However, in the Essure collective action, the Midden- Nederland District Court held that health insurers could lodge their own claims (for medical costs they reimbursed to the injured persons), alongside the claims of Stichting Essure Claims (SEC) on behalf of the injured persons (for damage they incurred). The court found that the health insurers’ claims do not fall under the proceedings on the basis of the WAMCA, but can be dealt with together with SEC’s claims in the
181 CHAMBERS.COM
Powered by FlippingBook