Competition Flashback Q3 2022

This is the Competition Flashback Q3 2022 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback from bureau Brandeis by e-mail in the future? You can subscribe to our mailing list here.


Overview Q3 2022

Merger control

Cartels and vertical restraints

Abuse of a dominant position

Follow-on competition damages claims

Consumer law


Illumina/GRAIL: European Commission allowed by EU Court to investigate non-notifiable concentration and bans controversial transaction

General Court, judgment of 13 July 2022; European Commission, decision of 6 September 2022 and press release of 19 July 2022

There have been a number of noteworthy developments surrounding Illumina’s  high-profile acquisition of GRAIL. On 13 July 2022, the General Court of the European Union (“General Court”) ruled for the first time on the competence of the European Commission (“Commission”) to investigate a concentration following receipt of referral requests from national competition authorities under Article 22 of the Merger Regulation. The procedure for such a referral was explained in more detail by the Commission in its Article 22 Guidelines last year (see our previous blog). Although this provision functioned primarily as a safety net for Member States without a merger control regime, the General Court concludes that Article 22 has a broader scope and contributes to the purpose of the Merger Regulation. According to the Court, this interpretation does not undermine the principle of legal certainty. In that regard, it does emphasise that the Commission must observe a reasonable time limit. A period of 47 days between the moment that the Commission first learns about the acquisition (through a complaint) and that it sends an invitation to the Member States to submit a referral request, is considered unreasonably long. However, as this did not harm Illumina’s defence, it could not lead to the annulment of the decision. The General Court’s judgment thus appears to leave a fairly large degree of discretion to the Commission.

Hence, the Commission was allowed to launch an investigation into the Illumina/Grail-transaction and, after an in-depth investigation, banned the acquisition on 6 September 2022. GRAIL is an undertaking that develops blood tests for the early detection of cancer. Illumina is the only credible provider of so-called NGS-systems, which form a necessary input for the production of these blood tests. The Commission found that, post-transaction, Illumina would have the ability and incentive to exclude GRAIL’s competitors from the market, thereby significantly hampering innovation. As Illumina had already implemented the acquisition in August 2021, the Commission is currently considering measures to undo the concentration.

In parallel, the Commission launched an investigation into a possible breach by Illumina of the standstill obligation. On 29 October 2021, the Commission imposed interim measures on Illumina to restore/maintain competitive conditions on the market despite the implementation of its acquisition of Grail. On 19 July 2022, the Commission sent Illumina its Statement of Objections. An infringement could result in a significant fine (up to 10% of its annual turnover).

Illumina/GRAIL constitutes a special test case of Article 22 of the Merger Regulation where all kinds of novelties around merger control arise. Not only regarding the application of the referral regime itself, but also on the assessment of a possible breach of the standstill obligation (in the absence of a notification obligation) and the reversal of an already implemented transaction.


back to the top

Highest administrative court overrules Rotterdam court and upholds ACM’s approval decision Sanoma/Iddink

Trade and Industry Appeals Tribunal, judgment of 12 July 2022

The judicial review of the Dutch Authority for Consumers and Markets’ (“ACM”) second-phase decision on the acquisition of Iddink – provider of the electronic learning environment (“ELO”) Magister – by schoolbook publisher Malmberg (Sanoma) recently took a new turn. While the District Court of Rotterdam annulled the decision following an appeal by rival textbook publisher Noordhoff, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb”) reversed that judgment and ruled that the decision is not unlawful.

Initially, the District Court of Rotterdam ruled that the ACM had not sufficiently examined whether the merging parties could deprive competing publishers (such as Noordhoff) of access to schools by bundling ELO services and educational programmes. According to the court, the ACM’s decision on this point was not adequately reasoned, as the ACM should not have concluded simply on the basis of a survey among schools that there was no need for bundling.

The CBb agreed with the Rotterdam District Court in that the ACM had not carefully presented the research results among schools, but ruled that this did not constitute a breach of the duty to state reasons which could lead to annulment. The demand of schools is only one of the factors the ACM took into account in its assessment of Iddink and Sanoma’s bundling strategy. As regards other aspects of the merger decision and the remedy proposal, the CBb found no shortcomings. For instance, the ACM has sufficiently substantiated its choice for behavioural remedies instead of structural remedies. Moreover, the CBb considers that the commitments are appropriately designed, despite their reactive nature, and the control mechanisms (external auditor, fast-track arbitration and audit options) are sufficiently effective and enforceable.

Hence, the ACM’s initial merger decision will revive and the amended decision following the court’s first ruling (see our Competition Flashback Q3 2021) is revoked.


back to the top

Insurance Ireland commits to providing non-members with access to its database

European Commission, decision of 30 June 2022

On 30 June 2022, the Commission accepted commitments offered by Insurance Ireland, a trade association for the insurance sector in Ireland. The procedure revolved around the access provided by Insurance Ireland to its Insurance Link information exchange system, a database which facilitates the detection of fraud.

In 2019, the Commission launched a formal investigation into the conditions for insurance service providers to gain access to Insurance Link, as designed and imposed by Insurance Ireland. In its Statement of Objections, the Commission considered that Insurance Ireland unfairly made access to the database dependent upon membership of the trade association. It also found that the conditions for being admitted to Insurance Ireland were not sufficiently clear, transparent and objective, and were discriminatory. Moreover, the membership application process was not handled in an adequate manner. The Commission concluded that Insurance Ireland arbitrarily delayed or de facto denied access to Insurance Link to companies that had a legitimate interest in being admitted to it, which put them at a competitive disadvantage.

To address the Commission’s concerns, Insurance Ireland has committed to separate access to Insurance Link from the association’s membership, to revise the access criteria, and to improve the application procedure. In addition, for applicants that have been refused access, it will be possible to appeal to an independent appeal body. Finally, Insurance Ireland will not use Insurance Link’s fee structure to hinder access to the database. The Commission will monitor the implementation of and compliance with these commitments for a duration of ten years.


back to the top

ACM allows sustainability agreements between soft-drink suppliers

ACM, press release of 26 July 2022

Using its draft Guidelines on Sustainability Agreements, the ACM announced that it will allow a joint agreement between soft-drink suppliers to abolish the plastic handle on multipacks of soft drinks. This is the fourth time the ACM has openly welcomed a sustainability initiative and reviewed it in light of its draft Guidelines (see two previous initiatives in the energy sector and the cooperation between Shell and TotalEnergies).

The ACM welcomes the initiative by Coca-Cola, Vrumona, Albert Heijn and Jumbo. It believes that the agreement will not negatively affect competition or come to the detriment of consumers, for example through an increase in price or a decrease in quality. The ACM also endorses the suppliers’ view that the handle does not play a role in the competitive process. Instead, the initiative makes a positive (non-mandatory) contribution to a sustainability objective and/or entails an improvement in product quality. The ACM does nevertheless emphasise, with reference to its Guidelines on sustainability claims, that suppliers may only use clear, correct and relevant sustainability claims if they wish to include this initiative in their advertisements.


back to the top

Lower court upholds cartel fine for H&S Coldstores after referral back from the CBb

District Court of Rotterdam, ruling of 7 July 2022

After a quashing and referral back from the CBb, the Rotterdam District Court ruled again on the case concerning H&S Coldstores. In 2015, the ACM imposed a fine for the exchange of commercially sensitive information about fish storage in cold stores, in violation of the cartel prohibition. In first instance, the Rotterdam District Court annulled the fining decision as, in its view, there was insufficient evidence showing that the contacts were part of an overall plan and therefore amounted to a single and continuous infringement. On appeal, however, the CBb ruled that these contacts did in fact amount to a common overall plan and endorsed the existence of a single and continuous infringement. The CBb referred the case back to the court of first instance to examine the remaining grounds of appeal.

In this (second) judgment, the court addressed, amongst other things, the legality of the dawn raids performed in the preliminary investigation. The court ruled that by using the words “the operation of cold-storage warehouses” in conjunction with the underlying documents, the ACM had sufficiently clearly defined its investigation purpose. The ACM had also correctly determined the amount of the fine, as the parties frequently coordinated their offers, which effectively eliminated price competition. The appeal was completely dismissed, resulting in the revival of the fine of €694,000.


back to the top

ACM receives extension of decision-making period and may supplement investigation report in complex cartel investigation

District Court of Rotterdam, judgments of 25 August 2022

In three (nearly identical) judgments, the Rotterdam District Court elaborated on the ACM’s decision-making period for (cartel) fining decisions and the possibility of supplementing its investigation report. Fifteen parties lodged an appeal against the ACM for the failure to adopt a timely decision after delivering a report in which it established a violation of the cartel prohibition. Under the General Administrative Law Act, the ACM must decide whether to impose an administrative fine within thirteen weeks after the delivery of the investigation report. Since the ACM has offered a data room procedure, several parties have initiated civil (interim relief) proceedings (and subsequent expedited appeals), and the parties have submitted further opinions, the ACM is of the opinion that an additional report is necessary before it can decide whether to impose a fine or not.

The court notes that the statutory decision period of thirteen weeks is (merely) an indicative period and that exceeding it does not deprive the ACM of its power to impose a fine. Given the complexity and size of the case, the court sees reason to honour the ACM’s defence and grants it until 31 December 2022 to hand down its decision. The court explicitly emphasises that this does not (yet) answer the question whether the ACM is actually authorised to issue a supplementary report and/or whether there is a violation of the principle of legal certainty. This might come up in subsequent proceedings, according to the court, in case a fine will be imposed.


back to the top

Court permits one-year post-contractual non-compete clause in franchise agreement in case of protectable know-how

District Court of Amsterdam, judgment of 27 July 2022

In a judgment of 27 July 2022, the District Court of Amsterdam ruled that a non-compete clause agreed between Multicopy and one of its franchisees did not infringe the competition rules. The non-compete clause prohibited the franchisee from operating a shop competing with Multicopy at the same location within one year after termination of the agreement.

The dispute mainly concerned the question whether Multicopy had provided relevant and protectable know-how to a franchisee justifying a post-contractual non-compete clause (Pronuptia judgment). According to the court, to answer this question a link should be made with the Dutch Franchise Act, which came into force on 1 January 2021. That Act defines protectable know-how as “the whole of […] practical information […] which is confidential, substantial and identified”. The court found that the documents and training provided by Multicopy were, although general in scope, when taken together, sufficiently specific to graphic service businesses that they constitute know-how that warrants protection. The fact that an independent operator in the sector can obtain the information by other means does not affect the confidential nature of the information provided by Multicopy.

The court concludes that the non-compete clause, taking into account both its limited duration and geographical scope, does not infringe competition law and is not unreasonably onerous.


back to the top

General Court largely upholds multi-billion-euro fine Google in Android case, yet uncovers some procedural errors

General Court of the European Union, judgment of 14 September 2022

On 14 September, the General Court delivered its judgment in the Google Android case. In 2018, the Commission imposed on Google its highest fine ever (over €4.3 billion) for maintaining multiple contractual restrictions on original equipment manufacturers (“OEMs”) and mobile network operators. OEMs had to pre-install Google Search and Google Chrome apps in order to obtain a licence for the Google Play Store, and were not allowed to sell devices with Android versions that were not approved by Google if they wanted to pre-install Google apps on any of their devices. Google also offered OEMs and operators a financial incentive to only pre-install Google Search (exclusivity payments). According to the Commission, these restrictions involved one overall strategy to cement Google’s dominant position on the market for general search services during the rise of mobile internet.

The General Court largely upheld the Commission’s decision. It confirms the Commission’s finding that Google enjoys a dominant position in the markets for (i) general search services (Google Search), (ii) Android app stores (Play Store) and (iii) licensable operating systems (Android). The General Court rejects Google’s repeated argument that it is subjected to competitive pressure from Apple. However, the Court does conclude that there is insufficient evidence that the exclusivity payments in themselves constituted an abuse. The Commission did not sufficiently demonstrate that the payments covered a significant part of the market for general search services, and that a hypothetically equally efficient competitor of Google would not be able to offset these payments. Given the shortcomings in the ‘as efficient competitor test’, and the fact that the Commission rejected Google’s request to have an additional hearing after receiving the additional letter of facts on this matter, the General Court reduced the fine to €4.125 billion.


back to the top

Refusal of DPG to continue to supply newspaper content to digital kiosk Blendle does not constitute an abuse of dominance

Amsterdam Court of Appeal, judgment of 2 August 2022

On 2 August 2022, the Amsterdam Court of Appeal delivered its judgment in the case of Blendle v DPG Media.* In these expedited appeal proceedings, Blendle argued that DPG abused its dominant position by refusing to continue to supply newspaper articles (from e.g. AD, Trouw, de Volkskrant and het Parool) to Blendle’s digital kiosk. Since DPG’s newspapers constitute an essential input to market the Blendle platform, this leads to an abusive refusal to supply, according to Blendle. Blendle further argued that DPG was engaged in a strategy of self-preferencing as the refusal aimed to squeeze Blendle out the digital kiosk market in favour of DPG’s own initiatives, including Topics and

In first instance, the preliminary relief judge rejected Blendle’s request, mainly because it found insufficient evidence of a separate relevant market for digital kiosks. The Court of Appeal took a different approach and considered that it could not be established that DPG was actually developing its Topics platform into a digital news kiosk. In any event, this requires a more extensive factual investigation which cannot be conducted in the underlying interim relief proceedings. As regards the refusal to supply, the Court of Appeal underlined that DPG is in itself willing to make its newspapers available, but only on the basis of a micropayment model (on a pay-per-article basis). Thus, even if it were to be assumed that Blendle is an innovative service for which there is consumer demand, and that access to DPG’s content is indispensable for the realisation thereof, there is an objective justification and no absolute refusal, according to the court.

As it did not establish an abuse, the Court of Appeal did not need to elaborate on the existence of a dominant position and the definition of the relevant market. Hence, the court did not need to address Blendle’s argument that DPG holds a market share of 63% on the Dutch daily newspaper market and enjoys a dominant position. The Court of Appeal thus upheld the judgment of the Amsterdam District Court.

*Bas Braeken and Demi van den Berg have assisted Blendle in these proceedings

back to the top

Advocate General Drijber and District Court of Rotterdam confirm ‘broad’ jurisdiction of Dutch courts based on the existence of an anchor defendant

Advocate General to the Dutch Supreme Court, opinion of 7 August 2022; District Court of Rotterdam, judgment of 17 August 2022

In his opinion of 7 August 2022, Advocate-General (“AG”) Drijber confirmed the judgment of the Amsterdam Court of Appeal in the case MTB/Heineken and AB. The case concerns a Greek brewery, Macedonian Thrace Brewery (“MTB”), which claimed damages from its competitor Athenian Brewery (“AB”), as well as AB’s Dutch parent company Heineken, for the abuse of dominance by AB in the Greek beer market. A central question in this case was whether the Dutch court has jurisdiction to hear the claims against the Greece-based AB due to the existence of a close link between the claims against AB and against the anchor defendant, Heineken. The court answered this question in the affirmative.

AG Drijber reaches the same conclusion: the Dutch court has jurisdiction to hear the claims against AB because the claims brought against AB and Heineken are closely linked. According to AG Drijber, it is important in this respect that, one way or the other, the Dutch court has to rule on the merits regarding AB’s actions, because Heineken – as a parent company – may be held liable for the alleged damage only if it is established that AB is liable. AG Drijber further concludes that a claimant only abuses procedural law where it creates jurisdiction artificially, for instance by bringing a claim that has no merit but solely aims to keep a defendant away from its own court.

In a damages claim relating to the bitumen cartel, the District Court of Rotterdam applied the same reasoning. The Dutch State claimed to have suffered damages as a result of the bitumen cartel and therefore sued Shell, Kuwait Petroleum and Total. These cartelists subsequently summoned, among others, the German oil and gas company Wintershall in indemnity. The District Court of Rotterdam confirmed the judgment of the Amsterdam Court of Appeal in MTB/Heineken and AB and ruled that there can only be grounds for refusing jurisdiction if it becomes sufficiently plausible that the claims were only brought to deprive the defendant of the jurisdiction of its national court, which was not the case here.


back to the top

Clarification of possibility for claim vehicles to choose Dutch applicable law and validity of assignments

District Court of Amsterdam, ruling of 27 July 2022

On 27 July 2022, the District Court of Amsterdam ruled on the applicable law in cases where claims have been bundled into a claim vehicle, such as a foundation, as well as on the possibility of transferring victims’ claims to a claim vehicle by assignment. The case concerned the admissibility of claim vehicles claiming damages resulting from the truck cartel.

In assessing the question of which law applies to the claims (on the basis of conflict of laws), the court held that the bundling of claims would result in the applicability of a multitude of legal systems. This would render the goal of the rules on conflict of laws futile. Moreover, the Dutch Conflict of Laws Act (Wet conflictenrecht onrechtmatige daad) does not provide a uniform solution for a situation where a competition infringement affects several Member States.

Therefore, in line with the judgment of the Court of Appeal of Amsterdam in the Aircargo case, the District Court of Amsterdam ruled that, taking into account the principle of effectiveness, the applicable law to the bundled claims should be determined in a manner corresponding to the choice of law (lex fori) provided for in the Rome II Regulation. Pursuant to that regulation, claimants can make a choice of law. In this case, Dutch law was chosen to be applicable. The applicability of Dutch law was also foreseeable for the truck manufacturers since the Dutch market was also affected by the truck cartel. In light of the principle of effectiveness, the court held that Dutch law applied to all bundled claims.

In addition, the court held that the assignments of the claims to the claim vehicles were valid. The claimants’ burden of proof as to the validity of the assignments entails that the defendants, in this case the truck manufacturers, must be able to establish that the assignor and assignee actually assigned their claim(s) on the basis of the documentation submitted. This burden of proof is satisfied when the assignment agreement and the deed of assignment are provided for each individual underlying party, from which it is clear that they were signed/issued by the (representative) assignor. Defendants can rebut this with specific evidence which demonstrates that there was no legally valid assignment.


back to the top

Obstruction of ACM investigation leads to significant fine for online shop owner

ACM, decision of 4 July 2022

On 4 July 2022, the ACM imposed a fine for obstructing the ACM’s investigation on the owner of an online store that sells accessories for mobile phones. During its investigation into a possible violation of Dutch consumer protection law, it asked the owner for information on multiple occasions.

Undertakings and individuals are generally obliged to cooperate with an ACM investigation. Although the ACM often merely threatens with a sanction for non-cooperation, it rarely actually imposes a fine. The owner in question did, however, not respond to any of the requests for information. As such, the ACM was unable to determine whether its suspicions were correct. According to the ACM, this seriously hindered the supervision of compliance with consumer protection rules and undermined its authority as a regulator. The ACM therefore decided to impose a fine of €10,000.


back to the top

Clothing companies offer commitments to ACM regarding sustainability claims

ACM, decisions of 19 August 2022 and 29 August 2022

In spring 2021, the ACM launched a large number of investigations into potentially misleading sustainability claims, including in the clothing sector. It assessed the claims of ten major companies and, on the basis of those findings, launched a follow-up investigation into six of those. The investigation carried out by the ACM revealed that Decathlon and H&M offered their products using general terms such as ‘Ecodesign’ and ‘Conscious’ without immediately specifying clearly the sustainability benefits in the claim.

Although the ACM did not establish an infringement, Decathlon and H&M have committed to adjust or no longer use the sustainability claims on their clothes and/or websites, as well as to inform consumers more clearly in order to minimise the risk of misleading practices. Furthermore, the two companies will donate €400,000 and €500,000, respectively, to sustainable causes to compensate for their use of unclear and insufficiently substantiated claims.

The commitment decisions regarding Decathlon and H&M are the first in which the ACM explicitly assesses sustainability claims on the basis of the Guidelines on sustainability claims, which contain rules of thumb and practical examples that can help businesses when phrasing sustainability claims. The ACM is currently also investigating the use of sustainability claims in other sectors. In January, for instance, the ACM launched a follow-up investigation into misleading sustainability claims made by two energy suppliers.

Read more about recent developments in consumer law (and sustainability) in our recent blog.


back to the top


For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

You can reach us via the links below.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg




10 questions about the Digital Services Act

On 4 October 2022, the European Council adopted the final version of the Digital Services Act (“DSA”).Together with the so-called Digital Markets Act (“DMA“, see here), the DSA forms the basis of new European legislation for the digital economy.

The DSA contains EU-wide rules for online intermediaries, including online platforms and search engines. The DSA intends to update the more than 20-year-old E-Commerce Directive. Indeed, since 2000, digital technologies, business models and services have changed significantly.

The DSA contains important new rules for virtually all online services. However, some platforms and search engines operators are regulated more heavily. The aim of the DSA is, among others, to ensure that illegal online content is addressed quickly and that the fundamental rights of internet users are protected. The DSA aims to combat current digital challenges, such as illegal products, hate speech, disinformation and fake news.

For that purpose, the DSA contains rules, inter alia, on:

  • The liability of intermediary services;
  • Notice and action mechanisms;
  • Content moderation practices;
  • Online advertising, profiling and targeting;
  • The use of algorithms and recommender systems;
  • The traceability of traders; and
  • Systemic risks of very large online platforms and very large online search engines.

The DSA also introduces a new oversight mechanism.

Enough reason, therefore, to take a closer look at this important new regulation, which comprises over 300 pages. What will change with the DSA – and what won’t? What obligations apply to which services? A Q&A on the DSA.

 1)            What services are covered by the DSA?

The DSA contains new rules on the responsibilities and liability of “intermediary services“, or internet intermediaries. The DSA distinguishes between the following four different types of services:

  • Intermediary services, which can either be (i) mere conduit (transmission) services, (ii) caching (temporary storage) services or (iii) hosting services. According to the recitals of the DSA, these services may, inter alia, include online search engines, local wireless networks, DNS services, domain name registers, virtual private networks, cloud services, proxies and webhosting services;
  • Hosting services: services that consist of the storage of information provided by end users;
  • Online platforms: hosting services that, at the request of the user, not only store, but also disseminate information to the public. The latter means that the information, at the request of the user, is made available to a potentially unlimited number of third parties. Online platforms include, inter alia, online market places, social media services, and app stores.
  • Very large online platforms and search engines: online platforms and search engines with more than 45 million monthly active users in the EU. In other words: the Facebooks and Googles of this world.

The obligations with which these services must comply increase gradually. The very large online platforms are therefore subject to the heaviest due diligence obligations.

 2)           What happens to the liability safeguards contained in the E-Commerce Directive?

The liability framework in the E-Commerce Directive remain largely intact. This framework stipulates when an intermediary service cannot be held liable in relation to illegal content provided by the recipients of the service.

The existing liability exemptions for “mere conduit”, “caching” and “hosting” services are incorporated in full in articles 4-6 of the DSA. The prohibition on general monitoring (article 8) also remains in place.

This also means that the existing case law of the Court of Justice of the European Union (“CJEU”) concerning the liability exemptions and the measures that can be imposed on intermediaries, remains guiding. The cases L’Oréal/eBay, Scarlet/SABAM, UPC/Telekabel, McFadden, Eva Glawischnig and YouTube & Cyando thus remain relevant in practice.

At the same time, the DSA clarifies certain elements of the existing framework. One of these clarifications is the introduction of a so-called “Good Samaritan” clause. The fact that a service carries out voluntary own-initiative investigations or takes others measures to combat illegal content, does not lead to that service being ineligible for the exemptions from liability (article 7).

The DSA also makes it explicit that providers of intermediary services must comply with orders issued by judicial or administrative authorities to act against one or more specific items of illegal content (article 9) and to provide information about one or more specific individual recipients of the service (article 10). The service provider must inform the authority issuing the order of the effect given thereto, after which the authority shall transmit the order to the Digital Services Coordinator (see Question 8) from the Member State of the issuing authority. The order will then be shared with all other Digital Services Coordinators.

It is not entirely clear from the DSA whether these orders– stemming from inter alia law enforcement authorities (recital 32)– differ from the orders that can be issued to terminate or prevent an infringement pursuant to the relevant liability clauses, although it looks like they do. Indeed, the DSA stipulates that these orders “shall be without prejudice to national civil and criminal procedural law”.

 3)           What obligations will apply to all intermediary services?

The DSA contains a number of “due diligence” obligations that digital services must comply with. These requirements are proportionate to the size and risks of the service: the greater the service, the greater the responsibilities.

The DSA contains a number of obligations that all intermediary services must comply with, including the obligation to:

  • designate points of contact, both for supervisors and end users (article 11-12). Services established outside the EU must appoint legal representatives (article 13);
  • include information on content moderation, algorithmic decision-making and complaint handling systems in their terms and conditions (article 14);
  • publish public transparency reports with information on content moderation measures taken and the number of orders received from authorities (article 15). Additional reporting obligations apply to hosting providers and (very large) online platforms.

4)           What is “Notice and Action”? And how does it differ from Notice and Takedown?

The E-Commerce Directive dictates that hosting providers must have a so-called Notice and Takedown (NTD) system in place: upon receipt of a notice, there are obligated to remove (takedown) illegal information.

The DSA prescribes “notice and action mechanisms”, meaning that hosting providers should “act” when the receive a notice. Other than under the E-Commerce Directive, the DSA spells out what information a notice must contain. This includes a sufficiently substantiated explanation of reasons, the exact electronic location of the illegal information, and a statement confirming that the notice is made in good faith (Article 16). This system very much resembles the current DMCA-system in the U.S.

From article 17 of the DSA, it can inferred what the required “action” may entail, namely:

  • a restriction on the visibility of specific information, including the removal, disabling access or demotion of content;
  • a suspension, termination or restriction of payments;
  • a suspension or termination of the service; or
  • a suspension or termination of the account of the (alleged) infringer.

The hosting provider is obliged to notify both the user requesting the measures and the affected users of the decision it takes and the reasons therefore (article 17).

What is noteworthy is that the DSA does not contain a specific staydown obligation. In other words, it does not specifically require a hosting provider to prevent the same illegal content from reappearing again, although this may be inferred from the case law of the CJEU.

On the whole, Notice and Action resembles Notice and Takedown, be it that the procedure is made much more administrative under the DSA.

5)           What additional obligations apply to online platforms?

In addition to Notice and Action mechanisms, online platforms must:

  • have in place an effective internal complaint-handling system through which users can lodge complaints following a decision taken with regard to illegal content (article 20);
  • give priority to notices submitted by so-called “trusted flaggers” (article 22): entities with particular expertise and competence for the purposes of detecting, identifying and notifying illegal content. The status of trusted flaggers can be awarded by the Digital Services Coordinator (see Question 8);
  • take measures against repeat infringers (article 23), meaning users that frequently provide manifestly illegal content or frequently submit notices that are manifestly unfounded;
  • refrain from using so-called “dark patterns”: user interfaces that have been crafted to (subtly) trick or manipulate users into doing certain things (article 25);
  • provide transparency regarding online advertising (article 26, also see Question 6 below);
  • ensure that recipients of their service are informed about how recommender systems impact the way information is displayed, and how users can influence how information is presented to them. Platforms should clearly present the parameters used for such recommender systems, including the most important criteria in determining the information suggested to the recipient of the service and the reasons for their respective importance, including where information is prioritised based on profiling and users’ online behaviour (article 27). Very large platforms must offer an option for recommendations that is not based on profiling (article 38);
  • Vet the credentials of business users (article 29), in case the platform allows consumers to conclude distance contracts with traders (KYBC – “know your business customer”). Online platforms must further organize their online interfaces in a way that allows traders to comply with their information obligations towards consumers.

 6)           How does the DSA regulate online advertising?

Online advertising plays an important role in the online environment. The provision of online services is often wholly or in part remunerated though advertising revenues. Indeed, ads are Meta’s and Google’s main source of income.

Online advertising also poses significant risks, ranging from ads that are themselves illegal to the discriminatory presentation of ads with an impact on society (recital 68). For that reason, the DSA contains very important new provisions relating to online advertising, aiming to give online users more control and understanding over the ads they see online. For this purpose the DSA stipulates that:

  • Commercial communication must be clearly identifiable as such (though clear markers) and users will have to be clearly informed, for each specific ad, on whose behalf the advertisement is presented and who paid for the ad (article 26). Moreover, providers of online platforms that present advertisements must also provide “meaningful information” about the main parameters used to determine the recipient(s) to whom the ad is shown and. This includes information on the logic used and information about profiling techniques. This means that services should elaborate on the nature of their advertising activities: is it contextual, what profiling criteria are used? Services should also inform their users about any means available for them to change such criteria.
  • Targeted advertising based on profiling using special categories of personal data, such as sexual orientation or religious or political beliefs, is prohibited (article 26 paragraph 3). This provision thus significant limits services in using targeting techniques to optimize ads to match a user’s interests and potentially appeal to their vulnerabilities.
  • Providers of online platforms should not present advertisements based on profiling using personal data of the recipient of the service when they are aware with reasonable certainty that the recipient of the service is a minor (article 28).

For very large online platforms, the DSA prescribes additional measures to mitigate risks and enable oversight. These services will have to maintain and provide access to ad repositories, allowing researchers, civilians and authorities to inspect how ads were displayed and how they were targeted. Very large online platforms and search engines also need to assess whether and how their advertising systems are manipulated or otherwise contribute to societal risks, and take measures to mitigate these risks (see Question 7).

 7)           Which obligations apply to very large online platforms- and search engines?

Due to the particular risks tech giants such as Facebook, TikTok and Google pose in the dissemination of illegal content and societal harms, these parties are subject to the most stringent due diligence obligations.

  • They must conduct risk assessments to identify systemic risks stemming from the design and use of their services (article 34). Systemic risks include issues such as disinformation, illegal content, election manipulation, manipulation during pandemics and harms to vulnerable groups. In conducting the risk assessment, account must be had to all aspects of the service, including content moderation, advertisement and algorithmic systems.
  • They must prevent abuse of their systems by taking risk-based action, including oversight through independent audits (article 35, 37). These measures must be carefully balanced against restrictions of freedom of expression;
  • They must comply with a new crisis response mechanism, forcing them to act upon instruction of the Commission in cases of serious threat for public health and security crises, such as a pandemic or a war (article 36);
  • When Big Tech platforms recommend content, users must be able to modify the criteria used and be given the option to choose not to receive personalized recommendations (article 38).
  • They must comply with additional online advertising transparency obligations (see Question 6 above), including by offering a publicly available and searchable online register (article 39). This register must in any case include the following information per advertisement: (i) the content of the advertisement, (ii) the advertiser on whose behalf the ad was presented, (iii) the (legal) person who paid for the ad, (iv) the period during which the ad was presented, (v) whether the ad was specifically intended for a particular group of recipients and, if so, the parameters used to define that group and (vi) the number of recipients of the advertisements, broken down by Member State.

 8)           How will the DSA be supervised and enforced?

The DSA foresees in a unique oversight structure. Each Member State will need to appoint a Digital Services Coordinator, an independent authority which will be responsible for supervising the intermediary services established in their territory.

The European Commission will be the primary regulator for very large online platforms and search engines. In the most serious cases, it can impose fines of up to 6% of the global turnover of a service provider.

An EU-wide cooperation mechanism will be established between national regulators and the Commission.

The Digital Services Coordinators will cooperate within an independent advisory group, called the European Board for Digital Services, which shall provide advise to the Digital Services Coordinators and the Commission on matters covered by the Regulation.

 9)           When does the DSA apply?

All online intermediaries offering their services in the EU must comply with the new rules. This is regardless of whether they are established in the EU or not. A provider offers services in the EU if a “substantial connection” to the Union exists. This is the case when a service provider has an establishment in the Union or, in the absence thereof, when the number of recipients of the service in one or more Member States is significant in relation to the population thereof. A substantial connection can also exist on the basis of the targeting of activities towards one or more Member States. This may be derived, for example, from the availability of an application in the national application store, from the provision of local advertising or advertising in a language used in that Member State, or from providing customer service in a language generally used in that Member State.

The mere fact that a website is accessible from the EU, on the other hand, cannot in itself be considered as establishing a substantial connection to the Union.

 10)         When will the DSA enter into force?

Today, the Council formally adopted the DSA, which will now be published in the Official Journal of the EU. The DSA will be directly applicable across the EU after entry into force.

Very large online platforms and search engines will have to comply with the new rules within four months after their designated as such by the Commission.

All the other digital services will be obliged to comply with the DSA by 1 January 2024, or fifteen months and 20 days after the date on which the DSA is published in the Official Journal of the EU, whichever is later.


Court halves AFM fine issued to SBM for late disclosure of inside information

For the first time in a while, the financial supervision chamber of the Rotterdam District Court has dealt with a market abuse case. The Authority for the Financial Markets (AFM) had imposed an administrative fine of EUR 2 million on SBM Offshore N.V. (SBM) for failing to timely disclose inside information. SBM appealed the fining decision and has now partly been proven right.

On appeal the court found that with respect to two of the four alleged violations the financial regulator applied an incorrect legal criterion in assessing whether the listed company had price sensitive information. The court has settled the matter itself by reducing the fine to EUR 1 million.

The matter dates back to SBM’s internal investigation into allegations of bribery and unlawful payments to international trade agents in 2012, in which context the company i.a. consented to an out-of-court settlement of USD 240 million with the Public Prosecutor’s Office.

Criteria for assessing if information is concrete are not to be mixed

Similar to previous market abuse matters (for example, in relation to Royal Imtech N.V.), the main question before the Rotterdam court was whether the information regarding possible unlawful trade practices in Brazil that SBM had on March 27, 2012 and May 27, 2014 was so “concrete” that it fell within the definition of inside information.

Pursuant to market abuse laws and regulations, issuers of financial instruments like SBM are to disclose inside information as soon as possible, insofar as it relates directly to the issuer concerned.

With reference to the Geltl/Daimler case of the European Court of Justice and CESR guidance on the Market Abuse Directive, the Rotterdam court distinguishes two criteria. To determine whether there is concrete information one can either depart from an existing situation that has occurred or from a future situation that may reasonably be expected to come into existence.

In assessing whether there is concrete information within the meaning of inside information, the AFM chose not to base its assessment on an existing situation or a situation that has taken place (for which, according to the guidance, there must be sufficient “hard” and objective evidence of that situation), but on a future situation or an event that may reasonably be assumed to occur.

The AFM takes the position that on March 27, 2012, and again on May 27, 2014, SBM had a reasonable expectation that bribery in Brazil would be identified in the future. In order to (have to) have that expectation, evidence is not required; a significant probability that this situation will occur is sufficient according to the AFM.

Evidence for the event to which the information relates is required

The Rotterdam court agrees with SBM and finds that the AFM used an incorrect legal criterion. In the opinion of the District Court, the facts and circumstances which the AFM used as a basis for two of the four alleged violations relate to an existing situation, namely the information known to SBM on March 27, 2012 and May 27, 2014 about possible bribery in Brazil.

According to the court, the AFM should have therefore proceeded on the basis of the existing situation – requiring firm and objective evidence – and not on the basis of a future situation in the form of the possibility that bribery (from the past) would be established in the future. In other words, if one criterion is used, the test of that criterion is to be used and vice versa. The two criteria and relevant tests are thus not be mixed, which also from a logical point of view seems to make sense.

The court repeals the AFM decision relating to the alleged violations on disclosure of unlawful trade pactices in Brazil and considers a total fine of EUR 1 million for the two remaining violations with regard to disclosure of SBM’s exclusion from a Petrobras tender appropriate and necessary.

Interestingly enough, the AFM could have imposed a fine of EUR 2 million on SBM for each violation separately. As it did not do so in this case but imposed one overall fine in the amount of the basic amount of EUR 2 million for four violations, this argument does not lead to a different conclusion on the adjustment of the fine, says the court.

District Court of Rotterdam, 21 June 2022, ECLI:NL:RBROT:2022:4948


Ukraine, COVID-19 and rights of third parties: some of the latest developments in European state aid law

State aid law has become increasingly relevant in recent years, not the least because of the COVID-19 crisis and the war in Ukraine. Since aid measures, as a rule, inherently distort competition in a member state or even in the European Union, state aid is in principle illegal. By way of exception, however, there are justifications that make aid granted to undertakings by a government permissible. It is up to the European Commission (“Commission”) in that regard to verify whether a (notified) aid measure is justified and therefore does not distort competition to an unreasonable extent.


The entire state aid procedure is essentially conducted between the member state notifying the aid and the Commission. The member state is also the addressee of the Commission’s decision on the aid measure in question. As a result, private companies – such as the beneficiaries of a measure or their competitors – qualify as third parties with usually fewer (effective) rights to challenge a Commission state aid decision.


Preliminary questions on admissibility and the Commission’s discretion in investigations

Foremost, the question arises whether third parties are able to appeal against a Commission decision at all. After all, the member state is the addressee of the decision, not the beneficiary or competitors. Pursuant to Article 263 of the Treaty on the Functioning of the European Union (“TFEU”), any natural or legal person may institute proceedings against a decision of an institution of the European Union, as long as the decision is of direct and individual concern to that person. Only under those conditions does a third party qualify as an interested party. In order to be directly and individually concerned, a third party must be in a special position that distinguishes it from other undertakings, so that the decision ‘individualises them in a similar way’ as the addressee. Demonstrating the existence of such a special position can be difficult for competitors of a beneficiary of state aid. The Court of Justice of the European Union (“ECJ”) addressed this issue in Lufthansa v Commission (20 January 2022). In that case, Lufthansa brought an action against three state aid measures granted by Germany to the Frankfurt airport. The ECJ emphasises that the fact that Lufthansa was entitled to express its views in the context of a formal investigation procedure into the aid in question is not sufficient for it to be admissible in the context of an appeal against the resulting decision. A third party still has to demonstrate that it is directly and individually concerned.


Even when a third party does qualify as an interested party, it often finds itself in a difficult position nevertheless. In its Tempus judgment, the ECJ clarified the scope and intensity of the Commission’s preliminary investigation in state aid cases. This judgment shows that the bar is set relatively low for the Commission. In the Tempus case, the Commission decided not to raise objections to an aid measure of the United Kingdom which granted rewards to electricity suppliers if they could guarantee a higher level of security of electricity supply. However, Tempus argued that the Commission could not reach this conclusion solely on the basis of a preliminary investigation. In Tempus’ opinion, the aid measure was discriminatory and disproportionate, and the Commission should have at least opened a formal investigation procedure.


The ECJ concludes that the Commission is not required to identify or investigate all of the relevant information in its examination for it to eliminate all doubts regarding the compatibility of the notified aid measure with the internal market. Although it follows from settled case-law that the Commission must in some cases also assess elements other than those provided to it by a member state (e.g. Commission/Sytraval), there is no obligation for the Commission to gather, on its own initiative, all information that may be relevant for its assessment. The ECJ furthermore holds that the fact that an aid measure is complex or of great value, or that the pre-notification procedure is (relatively) long, is irrelevant for determining whether about the compatibility of the measure with the internal market.


Therefore, it is not sufficient for a third party wishing to appeal the approval decision of an aid measure to argue that the Commission could have had relevant information at its disposal to prove the existence of doubts as to the compatibility of the aid with the internal market. Tempus should have demonstrated that the Commission was aware of the relevant information in question and did not take it duly into account in its assessment, or that other information existed which would entail the Commission to initiate a further investigation.


This approach can certainly be criticised, especially from the point of view of third parties. Firstly, in practice, the Commission now rarely has to look beyond the information supplied by the member state notifying the aid. This makes it more difficult for third parties – who already have limited rights under state aid law – to successfully challenge (the approval of) an aid measure. Secondly, the completeness and accuracy of the information provided by the member state can be questioned. Member states seeking approval of measures may have an incentive to project the financial situation of their economy or of a particular company more favourable than it actually is. It follows from Tempus that the provision of information by a member state to the Commission is subject to little control. Thus, for example in the context of the Dutch state aid to KLM – in particular with regard to the importance of KLM for the Dutch economy – the Commission in essence solely had to rely on the information provided by the Dutch government itself in that respect.


Temporary Framework Arrangements: COVID-19 and Ukraine

If the appeal a third party (as an interested party) is admissible, it can challenge the content of the measure. The merits of such a challenge depend on the basis on which the measure was approved. Over the past two years, the majority of the challenged state aid measures were adopted on the basis of the Temporary Framework established by the Commission in the context of the COVID-19 crisis. Although it has already been extended and expanded six times, the Temporary Framework is – as its name suggests – only temporary in nature. Nevertheless, this framework and the case law that results from it are of great importance for state aid law and the rights of third parties in particular.


Firstly, the use of Article 107(3)(b) TFEU as a basis for aid measures has increased during the COVID-19 crisis. This article is an exception to the idea that state aid (by definition) distorts the internal market. According to Article 107(3)(b) TFEU, aid to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of a member state may be considered to be compatible with the internal market. As a result of the COVID-19 crisis, almost all member states experienced a serious disturbance in their economy and consequently based their COVID-related aid measures on this provision.


Case law of the European courts over the last two years has shown that the Commission, when assessing an aid measure, is not obliged to balance the positive effects of the aid measure against its negative effects. For example, in Ryanair v Commission, the General Court ruled that the Commission is only required to assess whether a measure is necessary, appropriate and proportionate. If that is the case, the outcome of the measure is presumed to be positive. This, thus, gives the Commission even greater discretion when assessing aid measures based on Article 107(3)(b) TFEU – which covers almost all aid measures over the past two years. This is all the more the case since the Commission has drafted the Temporary Framework in such a way that (in its view) a measure is compatible with the internal market as soon as the conditions set out in the Temporary Framework are met.


In the same vein as the COVID-19 framework, the Commission launched another Temporary Framework on 23 March 2022, this time in response to the Russian invasion of Ukraine. This broad policy document allows member states to establish aid measures on the basis of, inter alia, Article 107(3)(b) TFEU. In this Temporary Framework, the Commission again imposes conditions a measure must fulfil in order to be automatically compatible with the internal market. France has been the first member state to make use of the Ukraine Temporary Framework: the Commission has approved an aid measure (of €155 billion) pursuant to which France can provide a (partial) guarantee to companies taking out new loans. The Commission also approved aid measures from, among others, Poland (€836 million), Spain (€169 million) and Germany (€20 billion).


Despite the Commission’s broad discretion in assessing aid measures, it is nevertheless obliged under Article 296 TFEU to duly substantiate and reason its decisions. Although the Commission is not required to address all relevant legal and factual issues, its reasoning must be clear and unambiguous in order to allow interested parties to ascertain the justification of the measure taken and to allow the competent court to exercise its power of review.


Although this ground for annulment has been invoked rarely in the past, the General Court recently ruled in three cases – all brought by Ryanair – that the Commission decisions to authorise the aid were inadequately reasoned. Those cases concerned Ryanair’s actions against aid granted by Germany to Condor, by Portugal to TAP and by the Netherlands to KLM.


As of now, these cases are merely procedural victories for Ryanair. In all three cases, the General Court limited the consequences of the annulment, ruling that the immediate recovery of the aid would have particularly damaging consequences for the economy of the member states concerned, which had already been seriously disrupted by the COVID-19 pandemic. In addition, it was ‘only’ an inadequate statement of reasoning and the Commission was granted the opportunity to remedy this procedural shortcoming. The aid granted has thus not (yet) been recovered from the beneficiary airlines and the Commission has in the meantime taken new decisions on the German, Portuguese and Dutch aid measures. Ryanair has already lodged an appeal against the re-adopted decision of the Commission regarding the Portuguese aid to TAP.



The state aid procedure is primarily conducted between the Commission and the member state notifying an aid measure. Still, third parties such as beneficiaries or their competitors are usually affected by aid measures. Although it can be an ‘uphill battle’ for these parties, it is not impossible to successfully challenge an aid measure. Even when the Commission and the member state have a wide margin of manoeuvre, as is the case with aid measures based on the temporary frameworks, they are bound by the proportionality, appropriateness and necessity of a measure as well as the obligation to state reasons. This grants third parties the opportunity to nevertheless successfully challenge an aid measure.


Bas Braeken, Jade Versteeg, Timo Hieselaar


Competition law developments in food and agriculture: sustainability objectives and protection against buyer power

Competition authorities are becoming more and more active in the food and agricultural sector. New exemptions for the application of competition law are introduced, and the agricultural sector is given more opportunities to cooperate. Especially in the context of sustainability, coordination between farmers is ever more allowed. In addition, there are initiatives to strengthen the position of farmers in the supply chain by limiting the buying power of strong market players, such as supermarkets. On 1 November 2021, the Dutch Unfair Commercial Practices in Agriculture and Food Supply Chain Act (“UCPAA“) entered into force, and established a new Disputes Committee that has become active on 1 January 2022. In this contribution, we provide a current overview of the application of competition law in the agricultural sector and discuss some recent developments.

Competition law in the agricultural sector

In light of the EU’s Common Agricultural Policy (“CAP“), Article 42 of the Treaty on the Functioning of the European Union (“TFEU“) provides that the competition law provisions apply to the production of and trade in agricultural products (defined in Annex 1 to the TFEU) only to the extent determined by the European legislator through specific legislation. In that regard, the legislator should take into account the objectives of the CAP, such as increasing agricultural productivity, stabilising markets, ensuring a fair standard of living for agricultural communities as well as assuring supplies and ensuring reasonable prices for the consumer.

The Dutch Competition Act (“DCA“) does not yet provide any explicit exemption for the agricultural sector. In 2021, a Proposal has nevertheless been submitted to include such an exemption in the new proposed Article 11a DCA.

The CMO Regulation

The application of the competition law rules in the agricultural sector is laid down in Regulation 1308/2013 (the “CMO Regulation“). It is directly applicable in the Dutch legal system. The CMO Regulation is a long and product-specific document; specific rules can be found on the import of hops, the production and distribution of wine and sugar, and it provides specific rules for producer organisations in the fruit and vegetables sector.

Based on Article 206 of the CMO Regulation, the cartel prohibition (101 TFEU), the prohibition of abuse of a dominant position (102 TFEU) and the state aid rules (106 TFEU) generally apply to the production of or trade in agricultural products. The CMO Regulation nevertheless introduces some specific exemptions for (national support measures and) the application of the cartel prohibition in light of the CAP and with regard to producer organisations.

The exemptions of the CMO Regulation have been further expanded with the entry into force of Regulation 2021/2117. Since December 2021, certain conduct aimed at achieving sustainability objectives can also be exempted from the cartel prohibition. The new Regulation also provides that for neither of these exemptions, prior approval of the European Commission (“Commission“) is required. Subject to the conditions set out below, these practices automatically fall outside the scope of Article 101(1) TFEU. If they wish to do so, farmers may nevertheless request an opinion from the Commission concerning the compatibility of their conduct with the competition law rules.

Exemptions from the cartel prohibition

The current, consolidated CMO Regulation exempts the following conduct from the application of the cartel prohibition:

  • Agreements, decisions and concerted practices necessary for the attainment of the CAP objectives, provided that they do not exclude competition and do not impose an obligation to charge identical prices;
  • Agreements, decisions and concerted practices of farmers, (associations of) farmers’ associations and recognised (associations of) producer organisations, which concern the production or sale of agricultural products or the use of joint facilities for the storage, treatment or processing of agricultural products, provided that such conduct does not exclude competition, jeopardise the CAP objectives and does not entail an obligation to charge identical prices;
  • Agreements, decisions and concerted practices of recognised interbranch associations that are necessary in order to meet a recognised objective in the interest of members and consumers (specified under Article 157(b)(c)), provided that they do not or cannot distort the market, distort or eliminate competition (in whole or in part), create discrimination or involve the fixing of prices or quotas;
  • Agreements, decisions and concerted practices of producers of agricultural products (or between such producers and operators at other levels of the production chain (i.e.: both horizontal and vertical)) that relate to the production of or trade in agricultural products and that are indispensable to apply a sustainability standard, including environmental objectives, the production of agricultural products and animal welfare.
Price-fixing and producer organisations

In the Endive-judgment of 2017, the connection between the first two exemptions and the possibility of mutual price-fixing was further clarified. The Court of Justice of the European Union (the “Court“) held that internal agreements and conduct of recognised producer organisations (“PO“) and associations of producer organisations (“APO“) may fall outside the scope of the cartel prohibition when they are (strictly) necessary to carry out the tasks legally assigned to them (including the CMO Regulation). Therefore, agreements on quantities to be marketed and the sharing of other strategic information might be necessary in light of the objectives of the CMO Regulation, such as stabilising producer prices and ensuring a fair standard of living. The Court did not consider it necessary to collectively set a minimum selling prices within a PO or APO, where producers subsequently sold their own products on an individual basis.

Although the Court emphasises that the CAP – and the specific objectives of POs and APOs arising therefrom – generally take precedence over European competition law, the mutual, collective fixing of prices is considered as a serious restriction of competition which, in turn, must take precedence over the (European) agricultural policy.


In this context, it is rather remarkable that the new sustainability exemption does not make an explicit reservation as regards the fixing of prices. This raises the question whether price-fixing strategies for the attainment of sustainability objectives could be exempted. In its Agro-Nutri Monitor 2021, the Dutch Authority for Consumers and Markets (“ACM“) notes that sustainability is often hindered by, amongst other things, the high costs of sustainable production and conversion costs for farmers. Higher (fixed) prices could therefore potentially promote sustainability. A legislative proposal to exempt certain sustainability initiatives is also currently pending in the Netherlands.

Earlier this year, the German competition authority, the Bundeskartellamt (“Bka“), approved two initiatives based on the new exemption. The Bka stated that it had no objections to food retailers setting common standards for wages in the banana sector, and encourages “Initiative Tierwohl”, in which four major German supermarkets (EDEKA, REWE, Aldi and the Schwarz-group, including Lidl) negotiate with livestock owners and slaughterhouses to introduce a certain animal welfare premium for poultry meat and pork.

However, at the end of January this year, the Bka also held that an envisaged system of surcharges in the dairy sector cannot be exempted and should in fact be considered anti-competitive. In order to ensure a higher (read: break-even) level of income for raw milk producers (livestock farmers), representatives of German milk producers intended to introduce a standard surcharge on the purchase price for ‘raw milk’. This surcharge would in practice be passed on through the supply chain, down to the milk shelf. The Bka recognises that this serves a legitimate (sustainability) objective, but states that the initiative in fact introduces a mandatory minimum price/surcharge in the supply chain, which ultimately leads to a higher price for consumers. Although sustainability initiatives – which sometimes can include agreements on (components of) costs/prices – are generally encouraged, the Bka draws the line where such agreements (can) disadvantage the eventual consumer.

In the coming years, the limits for this new sustainability exemption as envisaged by the European legislator will be further clarified. The Commission aims to publish its guidance on the application of the new Article 210a by the end of 2023.

Strengthening the bargaining power of farmers

In addition to (new) initiatives to exempt the conduct of producers of agricultural products from the cartel prohibition, competition authorities closely inspect the conduct of strong, incumbent market players such as supermarkets. The fact that farmers often face sizable and concentrated market players – on whom they are to a large extent economically dependent –makes it liable for abuse or other unfair behaviour to occur. From 2019 onwards, the ACM is investigating some particular agreements between “large traders” on the purchase price for farmers. In addition, at the end of 2021, the ACM started a new (international) investigation in the food processing sector, regarding (presumably) prohibited agreements on product distribution and purchase prices, to the detriment of farmers and growers.

Unfair commercial practices agricultural and food supply chain

On the basis of European Directive 2019/663, the Dutch UCPAA has entered into force on 1 November 2021. It prohibits large market players from implementing unfair commercial practices towards farmers, growers and fishermen in order to strengthen their (bargaining) position in the supply chain.

The UCPAA applies to conduct of buyers of agricultural and food products (as listed in Annex 1 to the TFEU) towards their suppliers (including APOs and POs). The rules only apply when the supplier is relatively small in relation to its buyer:

Supplier with turnover of Enjoys protection against buyer with turnover of
Less than 2 million euros more than 2 million euros
Between 2 million and 10 million euros more than 10 million euros
Between 10 million and 50 million euros more than 50 million euros
Between 50 million and 150 million euros more than 150 million euros
Between 150 million and 350 million euros more than 350 million euros
Up to 350 million euros buyer is a government agency

Article 2 of the UCPAA introduces a black list of behaviour that automatically leads to unlawful conduct by the buyer towards its supplier. It includes following conduct of the buyer:

  • Payments later than 30 days after delivery for perishable products and 60 days for non-perishable products;
  • Late cancellations for perishable products (in any case, less than 30 days);
  • Changing terms unilaterally;
  • Requesting payments not related to the sale of the products;
  • Requesting payments for spoilage and loss of the products after delivery, not due to negligence or default of the supplier;
  • Refusing written contracts despite the supplier’s request;
  • Unlawfully obtaining/using/disclosing the supplier’s trade secrets;
  • (Threatening) retaliation;
  • Requesting compensation from the supplier for investigating customer complaints when they are not attributable to negligence or omission on the part of the supplier.

Article 3 of the UCPAA additionally provides a grey list. The conduct on the grey list is presumed unlawful unless it has been previously, clearly and unambiguously agreed upon in writing between the supplier and the buyer. Such conduct includes:

  • Returning unsold products to or having them removed by the supplier without payment;
  • Requesting fees for:
  • the storage of products;
  • the incorporation of products into the assortment of the buyer;
  • the promotion, marketing, advertising or display of products in shops;
  • non-specified discounts on the products from promotional campaigns.

The ACM is assigned to supervise compliance with these rules. It is competent to impose a fine of up to 900.000 euros or, if more, 10% of the offender’s turnover. In addition, the Minister has appointed a specific Disputes Committee to settle disputes arising from this new legislative framework. As of 1 January 1 2022, the Dispute Committee has been instated and farmers can file a complaint (possibly anonymously) for a small amount of 250 euros.


The relationship between competition law and agriculture is still in development. Topics such as sustainability and climate change remain high on both the European and Dutch political agenda in 2022. As a result, competition law will occasionally have to make way for the preservation of the agricultural sector. The question remains, however, where these boundaries exactly lie and whether, and if so when, cooperation may in fact lead to higher prices. In the coming years, there will likely be more balance in the positions of suppliers/producers (farmers) and their buyers (e.g. supermarkets) as well.

Bas Braeken and Demi van den Berg



The bundling of claims in cartel damages litigation – Germany v. Netherlands v. UK v. Italy v. France

When pursuing damages in so called (follow on) cartel damages claims claimants can anticipate fierce resistance from defendants. The resistance is caused by the sheer volume of claims in these kind of cases. Collective claims can mount to several billions of euros (see for instance the claims asserted in Air Cargo[1] and Trucks[2]), sometimes even hundreds of billions, thus triggering defendants to counter with as many arguments (im)possible. Normally, the only way for claimants to survive this legal battle is to combine forces. Let’s tackle the defendants together. This is what is called the bundling of claims. Often litigation is impossible without the bundling of claims. One might argue that jurisdictions that forbid this bundling of claims are in breach of the doctrine of the useful effect. The useful effect doctrine constitutes a specific branch of the EU state action doctrine that serves to prevent Member States from enacting state measures that enable undertakings to escape antitrust accountability.[3] In other words damaged parties must be able to pursue compensation of their damages. We have seen some recent case law of the European Court of Justice (ECJ) in which it applied the useful effect doctrine to the benefit of claimants.[4] We did a comparative law research on the possibility of working together as claimants, thus the bundling of claims in various European jurisdictions.


Contributed by Konstantin Seifert, Oppolzer | Seifert Kartellrecht

In Germany, there is no specific regulation concerning the bundling of claims in cartel damage cases. As a result, there are no clear rules allowing or prohibiting the purchase or assignment of such claims and there are also no provisions allowing for a genuine opt-out antitrust class action. Thus, claimants (or “class action” organizers) that want to enforce damage claims of various injured parties in one and the same legal proceeding currently have to choose one of mainly three options under “regular” German civil law, civil procedure and – in one case – the general regulations concerning legal service providers:

Option 1 is going to court as a “joinder of parties” (“Streitgenossenschaft”), which means that every and all injured parties participating in the proceedings will be claimants next to each other. While this is undoubtedly permissible, the group of claimants (and the organizer/litigation funder behind them) face two challenges: The first one is that being a party to the proceedings every individual claimant can – in theory – take an active role in the trial, thus undermining the intended efficiencies of the “class” proceedings and potentially breaking up the united front of the claimants. Therefore, an elaborate contractual design may be needed in order to keep everyone aligned without overly imposing on the individual claimants (and risking an invalidity of the entire construct). The second challenge is that the court might simply decide to break up the proceedings into smaller pieces (up to one case per claimant), so that the claimants (and the claim organizer/funder) end up with dozens or hundreds of individual proceedings (each with their own – in Germany quite substantial – costs and cost risks). This has not been tested much, so the risk of a split-up is hard to gauge. However, the risk appears to be lower for smaller (still manageable) or very large groups of claimants (which would cause thousands of separate trials if split up, thus swamping the court) than for a mid-size group of claimants.

Option 2 is the assignment model, in which the injured parties assign their claims to a claim vehicle which then goes to court as sole claimant. The injured parties in turn bear no cost risk whatsoever and receive the lion’s share of the recovery (usually around 70%) whereas the rest goes to the claim vehicle/funder. While this is a very practical construct for all parties involved, it has had some teething problems and has – initially- been met with opposition on district court level. Multiple courts have found the assignments (i.e. the transfer of the claims to the claim vehicle) to be invalid due to either (i) insufficient financial resources of the claim vehicle or (ii) a violation of Germany’s Legal Services Act (“Rechtsdienstleistungsgesetz”). As a consequence, the trials inevitably ended in a fiasco (because the claim vehicle never possessed any claims it could enforce in court).

The first issue, however, practically arises only in special circumstances and can also be solved quite simply legally (but not cheaply). There has only been one landmark case in which the courts (in Düsseldorf) have held the assignments to be invalid due to insufficient funding of the claim vehicle.[5] That case was particular in that the claim vehicle itself had publicly communicated its sparse funding before the assignments were made so that the injured parties (i.e. the assignors) were aware or at least had to have known about the lack of funding, which under law is a prerequisite for the invalidity of the assignments.[6] Naturally, this will very rarely happen in other cases where clients simply have no reason to doubt the claim vehicles’ funding. Also, any (residual) risk can be excluded by providing sufficient financial resources to the claim vehicle to cover all costs reasonably expected in the proceedings (including, in particular, any potential cost reimbursements for defendant’s counsel). Because then, the defendant(s) would not be exposed to the undue risk of being unable to recover its costs for legal defense in case it won the case. As stated above this is simple in a practical sense, but it might be costly, because Germany has embedded the so-called loser pay principle in its procedural law, so counsels’ statutory fees and court fees might mount up to appr. 2 million euros. However, based on the Düsseldorf decisions, one can assume that taking out ATE (“after-the-event”) insurance (covering any adverse costs if the proceedings are lost) will also be sufficient and much more economical than depositing funds for all potential adverse costs in the claim vehicle’s bank account.

The second issue is that the German Legal Services Act (“Rechtsdienstleistungsgesetz”) considers the enforcement of claims for the account of a third party to be a legal service, which may only be rendered by companies with a debt collection license. It is not impossible to obtain such a license, but even then, several district courts had held that the license would not cover a business model directly aimed at legal proceedings in court (as opposed to out-of-court).[7] This, however, has recently been overturned by a landmark ruling of the Federal Supreme Court.[8] The FSC has also further clarified another contested issue, which is the conflict of interests provision in the Legal Services Act. Some district courts saw a violation of that provision in the fact that (i) the interests of different (groups of) injured parties might not be aligned (so the claim vehicle or the settlement could favor some injured parties at the expense of others) and (ii) the interests of the injured parties on the one hand and the claim vehicle on the other hand might also not be aligned (since the claim vehicle bears all cost risks and thus might be inclined to accept a settlement sooner than the injured parties would for themselves).[9] The FSC, by contrast, held that when designed properly (and particularly, if the claims are sufficiently homogeneous), these issues could be overcome.[10] This should also hold true with regard to a potential conflict of interests between the injured parties and a third party funder (providing the resources to the claim vehicle), at least if the funder’s influence in the proceedings (i.e. on the claim vehicle) is limited (and/or if any settlement can be revoked by the injured parties). The latter point (influence of the funder) has even been picked up by the legislator who has adopted a corresponding change in the relevant provision (§ 4, 1) of the Legal Service Act, which entered into force on 1 October 2021. There are several appeal proceedings pending in those cases, where a violation of the Legal Services Act had been ruled on District Court level. In those proceedings, a number of higher regional courts (in Munich,[11] Stuttgart,[12] Schleswig,[13] and Braunschweig[14])– even though they have not handed down final judgments – have issued orders and/or given opinions in oral hearings that strongly indicate they will overturn the first instance decisions and restore the validity of the assignments.

Given these developments, we can expect to see a renaissance of the assignment model in Germany. The extent of it will also depend on the outcome of an appeal case in the trucks cartel pending at the higher regional court of Munich[15] which is much anticipated (and which will probably go up to the FSC to finally settle the matter and provide even more guidance for future permissible designs of the assignment model).

Finally, it should be borne in mind that the German Legal Services Act will not apply to foreign injured parties assigning their claims to a foreign claim vehicle which then brings the case to court in Germany (against, for example, a German defendant).

Option 3 is the purchase of claims, which then are also assigned to a claim vehicle. Since there is a fix purchase price and therefore the injured parties have no further interest in what becomes of “their” claims, the claim vehicle then goes to court entirely for its own benefit. Therefore, there is no question of rendering a legal service to someone else and consequently no issue with the Legal Services Act. However, there are practical disadvantages: the claim vehicle/funder requires significantly more financing in order to be able to purchase the injured parties’ claims up-front – assuming even more risk than in the assignment model (Option 2) or in the financing of a joinder of parties (Option 1). Inversely, the injured parties usually get only a fraction of what they would have received had they chosen for option 2 with a favorable outcome.

The Netherlands

Dutch civil procedural law allows special claim vehicles to act as a plaintiff in proceedings. Dutch law provides the following options to enable a special purpose vehicle (SPV) to engage in proceedings.

Option 1 is that the injured parties can assign their claims to the SPV, which subsequently litigates these claims. The injured parties and the SPV can also enter into a contract of mandate which will entitle the SPV to litigate the concerned claim. The SPV can subsequently litigate these claims either in its own name, or in the name of the injured parties. This is what we call the “opt-in route”. Any participating party has to actively decide for themselves to join this collective action.

In various judgments in cartel follow-on cases in connection to the Air Cargo cartel, the Amsterdam District Court and Court of Appeal held that the assignment by individually injured parties of claims to a claim vehicle is in principle valid under Dutch law.

The burden of proof regarding the legal validity of the assignment of the claims lies with the claim vehicle, the Amsterdam District Court ruled. In a damages action initiated by claim vehicle Stichting Cartel Compensation (SCC), the court clarified that claimants will fulfil their obligation to furnish facts by submitting an extract of the deed of assignment and the title:[16]

“4.14. The District Court starts from the premise that if the documentation brought into the proceedings contains per shipper: (i) the assignment agreement (title) and (ii) the deed of assignment and (iii) it is clear that these were signed/issued by the assignor, it is sufficiently established that SCC is the party entitled to the claims, unless there are concrete indications, to be put forward by the airlines, that a legally valid assignment has not taken place in spite of this.”

“The court assumes that if the documentation per shipper submitted to the proceedings contains: (i) the assignment agreement (title) and (ii) the deed of assignment, and (iii) that it is clear that these have been signed/furnished by the assignor, then it is established to a sufficient degree that SCC is the entitled party to the claims, unless there is concrete evidence, to be submitted by the airline companies, showing that nonetheless, no legally valid assignment has taken place. It is important in this respect that the assigned debtor (and the court) can establish on the basis of the documentation that the assignor and assignee did actually intend to assign the claim In this case, the Amsterdam court held (on the basis of the assignment documents provided by SCC) that the assigned claims were described in a sufficiently clear and precise manner:[17]

4.21. The court finds that it is sufficiently clear from the aforesaid assignment documentation and bailiff’s notifications that this concerns claims from the shippers for compensation for all damages resulting from the cartel, including overcharge, interest, lost profit and costs. […] It has also been taken into account that this concerns claims arising from tort by virtue of a cartel (the size and duration of which was apparent to the cartel members but not to the shippers). The position of the airline companies basically boils down to the fact that the shippers did not wish to assign their entire claim for damages arising from the cartel but excluded parts of it which, in the absence of evidence to support this, seems to the court to be implausible. It is furthermore clear that this concerns claims from all the members of the cartel referred to in the decision (as debtors of the claims). The deeds of assignment (due in part to the reference to the assignment agreements) accordingly contain sufficient details to be able to determine which claims are concerned. Contrary to what the airline companies have argued, it is not necessary for the determinability of the assigned claims, namely the claims for damages that are based on tort (participation in the cartel), that it can be established (now already) which shippers purchased which flights (which routes).

4.32. Based on all of the preceding, the conclusion is that the assignments that are governed by Dutch law are legally valid. This implies that the defence of the airline companies that the litigation assignments are not valid does not need to be discussed.”

This criterion was applied in another likewise judgement of the District Court of Amsterdam[18] and later confirmed in appeal, by the Amsterdam Court of Appeal (2020);[19] if the claim vehicle has fulfilled its above mentioned burden of proof, it is then up to the airlines to argue, in the context of substantiating their defence, how and why the validity of the assignment should be questioned on reasonable grounds, the appeal court ruled. The appeal court added that the debtors had a limited right to information and that they could not claim additional documents, referring to the parliamentary history of Article 3:94(4) DCC, which provision provides that the person against whom the debt-claim is to be exercised may demand that a written summary of the notarial or private deed and of its legal basis are handed over to them.[20]

The appeal court further added that at (this stage of) these proceedings it is, under Dutch law, not necessary to establish whether or not the assignment of the claims was validly made, since that is not necessarily important in the relationship between assignee (claim vehicle) and debtor (cartelists). The important thing is whether the debtor has to accept the effectiveness of the assignment against him. If the debtor subsequently were to pay to a party who was not authorised to receive the payment, the debtor can object to the party to which the payment was to be made that he paid in full, if he reasonably assumed that the payment was made to the recipient.[21]

This means that cartelists’ defenses in cartel cases, seeking access to all the underlying documents, will thus be brushed aside at first instance. The documents in question may become relevant if there are reasonable grounds to doubt the validity of the assignment, but such discussions often focus on one or a few assignment agreements rather than on all assignment agreements submitted by the claimant. Overall, the abovementioned judgements have substantially reduced the possibilities of cartelists to call into question the validity of assignments when governed by Dutch law.

Option 2 is that the SPV can bring a so-called “collective action” on the basis of article 3:305(a) of the Dutch Civil Code (DCC), either old legislation, or new legislation, depending on whether the events that are subject to the action occurred prior or after 15 November 2016. Article 3:305(a) DCC, old legislation, enables the SPV to demand declaratory relief with regard to liability and causal relationship, for the benefit of groups of injured parties as far as their claims are sufficiently similar and insofar as the claim vehicle promotes these interests pursuant to its articles of association. The options under the old regime are limited to declaratory decisions only, however, these collective actions can provide the momentum necessary to force the injuring party to accept a collective settlement. A SPV can commence a collective action under Article 3:305(a) DCC (old) without the cooperation of the injured parties, but is subject to other limitations. This is the “opt-out” route. All injured parties are included, when finally a settlement has been reached, parties can opt out of this settlement and pursue their own goal. More strict rules with regards to corporate governance apply in the “opt-out” system, naturally because damaged parties can be drawn into this kind of litigation without prior consent. The old Article 3:305(a) DCC only remains available when the relevant events took place before 15 November 2016.

Recently the Dutch legislator updated the collective action regime, with the amendment of the Act on the Resolution of Mass Claims in Collective Action (Wet afwikkeling massaschade in collectieve actie, “WAMCA”),[22] and has introduced a mechanism to claim payment of damages in collective actions on behalf of the injured parties, as well as a lead plaintiff system. The legislator further added a number of additional safeguards and requirements for claim vehicles to constitute a viable representative claim as is required under Article 3:305(a) DCC to ensure the standing of the claim vehicle. For example, the SPV has to be sufficiently representative, has to have sufficient experience and expertise to commence and conduct the action and has to have a supervisory body. The merits of a case will only be assessed after the court has established that the claim is admissible under Article 3:305(a) DCC and the plaintiff has made it sufficiently plausible that pursuing the collective action is more efficient than individual claims (Article 1018(c) par 5 sub b Dutch Code of Civil Procedure).

If it has been established that a claim is admissible and successful, the court is also allowed to determine the amount of damages and the way in which the damages will be paid.[23] As the WAMCA rather new, there is no case law yet that gives guidance on how the courts will in practice deal with these competencies as there are no cases yet that have reached this phase.

The “opt-out route” is also an option for collective actions for damages under the WAMCA. If the collective action is on an opt-out basis, a court decision granting or dismissing the collective action will be binding on all injured parties who are member of the class, who reside in the Netherlands and who did not opt out.[24] The court decision will also be binding on members who reside abroad but in principle only if these parties opt in within a time period to be set by the court after the lead plaintiff has been appointed and announced, although the court is allowed to rule otherwise at the request of the plaintiff.[25] The WAMCA regime is limited to claims concerning events that took place after 15 November 2016.

Option 1 and 2 can be combined. Collective actions, option 2, can only be brought by a Dutch foundation or association and claims as described above under option 1 can also be brought by other vehicles than Dutch foundations and associations, provided the plaintiff’s law of incorporation empowers it to bring legal actions (article 10:119 (a) DCC).

The UK

In the UK, the ancient rules against “trafficking” of litigation: the law of ‘maintenance and champerty’, still has effects on the possibility to bundle claims.

Law of maintenance and champerty

Historically, English law did not recognize and enforce arrangements which qualified as ‘maintenance’ and/or ‘champerty’. ‘Maintenance’ entails the support of litigation in which the supporter has no legitimate concern without just cause or excuse. ‘Champerty’ is an aggravated form of maintenance in which the party who maintains the litigation funds the litigation and in return receives a share of the proceeds of a successful claim. The conclusion of such agreements was punishable under criminal law and constituted a tort.

Meanwhile, English law and UK courts have become more flexible and have adopted in principle a favorable perception towards the funding of litigation. Maintenance and champerty have been abolished as crimes and torts for a few decades, but the general rule has been left in place that a contract that breaches the rule against maintenance and champerty is considered to be contrary to be public policy and therefore unenforceable (section 14(2) of the CLA).

UK case law

Recent case law of the UK courts clarified that this rule does not necessarily invalidate a third party litigation funding agreement, unless there is some other element that is contrary to public policy. That might be for example, when the funder has undue control over litigation and/or when the funder receives a disproportionate share in the proceeds as opposed to the claimant(s).

The UK Courts have however shown to be less tolerant when claims are assigned to a third party which pursues the claim in its own name, as opposed to third party litigation funding. Assignment agreements may still be labeled as ‘champerty’ or ‘maintenance’ in particular when the assignee has no legitimate personal interest in pursuit of the assigned claims.

Leading cases regarding the assignment of claims have been for a long time Trendtex Trading Corp v Credit Suisse (1982)[26] and Jennifer Simpson (as assignee of Alan Catchpole) v Norfolk & Norwich University Hospital NHS Trust (2011)[27]:

  • The Trendtex case established that the assignment of a bare right of action is considered to be against public policy where the assignee does not have a “sufficient interest” to justify pursuit of the proceedings for his own benefit. The court considered that the aim to profit from the litigation does not amount to a “sufficient interest”, and neither does the pursuit of litigation as part of a personal campaign.
  • The court applied the principles from Trendtex also in the Simpson The cause of action assigned in this case concerned a cause of action in tort for personal injury. The claim was pursued by Mrs Simpson against the hospital where her husband had been a patient. While a patient at the hospital, her husband had contracted an infection called ‘MRSA’. Another patient at the hospital had also contracted the infection while treated in the hospital. The other patient assigned her claim to Mrs Simpson for the consideration of £1, and she pursued the claim in her own name and for her own benefit. The court considered that the assignment of a bare cause of action in tort for personal injury remains unlawful and void (para 24), stating that even though Mrs Simpson might have had ‘honorable motives’ in pursuing the claim, to demand attention for the (supposed) failing of the hospital, this was not the sort of interest the law recognized as “sufficient” as required by section 14(2) CLA. According to the court, the assignment in this case amounted to champerty, because it involved the purchase of a claim which, if it would be successful, would lead to Mrs Simpson recovering damages in respect of an injury she had not suffered. In the view of the court, that is an assignment of a bare right of action, in the sense the assignee has no legitimate interest, and is therefore void (para 28).

This case law makes clear that it is not so easy for a third party to pursue claims in its own name, when there’s no ‘legitimate’ personal interest and profit is the only goal.

There are however some recent cases which might suggest that there might be a development towards a more liberal approach by the UK courts with regards to the assignment of claims:

  • In the case of JEB Recoveries LLP v Binstock (2015)[28], claims that were assigned to a special purpose vehicle ‘JEB Recoveries’, were accepted by the UK High Court. The original claim concerned was a debt due from defendant under a contract between the defendant an Mr Wilson. Mr Wilson assigned his claim to the claimant SPV, which was established by him and two others. The court held that although the assignment of a bare cause of action had long been recognized as champertous and that, without more, assignment of the claim of a nominal sum would be likely to offend public policy, in this particular case there was more: the assigned claims were not a bare right of action but included debts, and also a connection remained between the assignor and the SPV pursuing the claims: Mr. Wilson had a one-third interest in JEB Recoveries and also assisted in the pursuit of the claims. This was different in the Simpson case, in which Mrs Simpson only pursued the claim in order to pursue a separate (personal) campaign. The court also cited the court in Simpson, which had held that the law on maintenance and champerty is open to further development as perceptions of public interest change, with reference to, inter alita, new statutory regulation since the Simpson case allowing certain damages-based agreements.
  • Two years later, in the case of Casehub Ltd v Wolf Cola Ltd (2017)[29], the UK High Court also allowed the bundling of claims by claim purchase agreements. The claims assigned were claims of customers against the defendant, who operated a software business, to be refunded the cancellation fees paid by them on the ground that the cancellation fee provisions in the terms and conditions of the defendant, were unlawful. The claims were assigned either in return for a percentage of the proceeds, or in return for a fixed amount. The court considered that in this case, the assigned claims did not amount to a bare cause of action because the assigned claims qualified as the right to the sum in question and the assignment of the right to bring a restitutionary claim to recover the sum, which would be incidental and subsidiary to that right (para 25).

Consequently, the question remained whether the claimant had a legitimate interest in the pursuit of the claims and whether there was a risk the integrity of the legal process would be impugned in some way (para 27). The court concluded that there were no public policy grounds which would lead to the conclusion that the assignment is invalid, to the contrary, the court held that there were strong public policy grounds in favour of upholding the agreement. In brief, because the assignments enhanced access to justice for the customers, while the court did not see a risk in this case of the litigation process being abused. The court also recognized that the claimant had a legitimate commercial interest in being able to pursue the claims assigned to it in order to protect the liquidates sums it acquired (para 28).

While these cases might suggest a shift in the UK courts perception towards the assignment of claims, it remains uncertain whether these cases will be upheld in all situations of assignment of claims. The acceptance by the courts of the assignment agreements in JEB Recoveries and Casehub was very case and fact specific, while the courts also made clear that the Simpson and Trendtex cases remain leading cases regarding this subject matter.

Therefore caution is still in order when it comes to the assignment of claims under UK law, as it will have far reaching consequences when a court will hold that an assignment is in breach of the law of maintenance and champerty: the assignment will be void and the claims cannot be pursued.


Contributed by Giovanni Scoccini, Scoccini & Associati

Italian law allows to bundle claims from different claimants in one lawsuit provided that these claims have the same causa petendi. This is the case with cartel damages claims, which stem from a single unlawful behaviour. Where the causa petendi is the same it is possible to file either a joint action under Article 103 of the code of civil procedure (c.c.p.) or a class action under the recently introduced Article 840 bis c.c.p

Option 1. The joinder of parties under Article 103 c.c.p is the traditional procedural instrument to realize economies of scale in the legal proceedings. It allows to bundle claims from claimants irrespective from where they are located (in Italy or abroad), provided that the lawsuit is filed with the court of the defendant’s domicile. On the other hand, if the lawsuit is filed with the court of the place where the harmful event occurred, the joinder of only the parties that are in the same jurisdictional district is possible. This could limit the use of the joinder of the parties if the defendant is not domiciled in Italy. However, the possibility that there are no defendants domiciled in Italy appears rare following the judgment of the Court of Justice in the Sumal case (C-882/19) in which judgement the Court established the liability of the local subsidiaries of the parent company which is the addressee of the infringement decision. Likewise in Germany, the Court may decide to break up the proceedings of the bundled claim either if it is requested by all the parties or if the joint management of the case may delay the proceedings or it may be too burdensome. In the truck cartel litigation, the court decided to break up the claims concerning the Scania vehicles from the other claims because the pending appeal of Scania against the Commission decision may result in a stay of the proceedings. The joinder of parties allows savings in the court fees and of the other costs of the proceedings.

Option 2. The new class action regime in Italy has been introduced by Law n. 31/2019 and is applicable to unlawful conducts that have taken place after November 19th 2020. The new class action regime is open both to consumers and undertakings directly or through an association. The proceedings is divided in three phases: 1) admissibility of the action; 2) judgment on the merit of the case 3) in case of success, payment phase of the compensation to members.

The class action can be filed by a single plaintiff which can also be an association provided that it is enrolled in the list kept by Ministry of Justice. In the first phase the Court will decide on the admissibility of the action. The action shall be declared inadmissible if it is blatantly ungrounded, the claims are not homogeneous (i.e. different causa petendi), there is conflict of interest between the plaintiff and the defendant or the applicant does not have the resources to adequately pursue the claim.

If the Court established that the action is admissible, the interested parties that have homogeneous claims can join the action and the case will go to trial. The Court shall not apply the formal rules of the code of civil procedure. It can ascertain the liability of the defendants taking into account statistical data and simple presumptions. The cost of the technical assessment shall be paid temporarily  by the defendant.

In case of success the Court awards compensation to the plaintiff, that kicked off the class action, establishes which are the injured parties, opens the possibility again to new members to file an application to join the class action, appoints the judge in charge of the payment procedure and a representative of the members of the class action.

The defendant can file a reply to the applications of the members that can be assisted by their lawyers. After the assessment of the applications and of the replies of the defendant, the representative of the members shall draft a payment project to be submitted to the judge that will decide whether to grant the applications or not. The defendants shall pay the legal costs to the original plaintiff, the fees of the representative of the members and the legal costs of the single members. These costs can be significant.

The new class action regime shall be welcomed for its efficiency because it allows to file a pilot case easy to manage by both the court and the lawyer of the claimants and to postpone the heavy work of book building of members, the collection and the assessment of the documents only when and if the pilot case is successful. On the other hand, it can be very burdensome for the defendant that may be found guilty and condemned to pay compensation to an indefinite number of members following a judgment based on statistical data and simple presumptions. In case of defeat the legal costs for the defendant can be significant.

Another option available for bundling the claims is the assignment of the claims. The assignment of receivables is provided by article 1260 of the Italian civil code, and the Supreme Court made it clear that damage claims may be transferred like any other receivables. However, when assigning/purchasing claims under Italian law, there might be another spanner in the works in the form of a potentially required banking authorization pursuant to article 106 of the Consolidated Law on Banking (TUB). This provision may be applicable to (inter alia) the acquisition of cartel damages claims, and even though this is not a clear-and-cut case, this provision deserves consideration as the consequences of violating article 106 TUB might have far-reaching consequences.

Article 106 TUB provides that “the exercise towards the public of the activity of granting loans in any form is reserved for authorized financial intermediaries, registered in a special register held by the Bank of Italy.”.

The activities envisaged by Article 106 TUB require that they are carried out with some degree of professional manner towards third parties (“towards the public”)[30] and one of the examples of what is meant by the “activity of granting loans” is the ‘purchase of receivables for consideration’.[31] This means that receivables, which might cover cartel damages claims of cartel victims, when acquired in a professional manner, might constitute a reserved financial activity within the meaning of article 106 TUB.[32]

When no authorization has been granted, such qualification is a risk because violation of article 106 TUB may have far reaching consequences. Not only will the (unauthorized) transaction(s) be considered invalid, the ‘lender’ may risk criminal sanctions pursuant to Article 132 TUB, which provides for criminal sanctions ranging from pecuniary sanctions to imprisonment.

It is held in case law that for specific financial activities to be considered abusive and therefore criminal, it is necessary that the activity is professionally organized with methods and tools such as to foresee and allow the systematic granting of an indefinite number of loans, addressing a potentially vast number of people.[33]

Even though the scope of article 106 TUB and the abovementioned case law within the specific context of the acquisition of cartel damages claims is not entirely clear (yet), the provision deserves consideration given the potential consequences when it may turn out that the provision does apply to (certain) models by which claims are bundled; being invalidity of the (assigned) claims and possible criminal sanctions pursuant to Article 132 TUB.


Contributed by Marc Barennes, bureau Brandeis Paris

In France, there are no specific rules authorizing or prohibiting the bundling of claims in cartel damage cases. However, there are three main mechanisms allowing cartel victims to bring large damages claims.

Option 1 is the joint actions model, whereby cartel victims bring individual (separate) claims at the same time, before the same court, to which they request that these claims be dealt with jointly pursuant to Article 367 of the procedural civil code. Such actions will normally be dealt with jointly as the claims are connected and it is in the best interest of justice that they be decided together. The challenges plaintiffs will face are the same ones as those identified above for the option 1 in Germany. While there is no doubt that joint actions have in fact successfully been brought in other fields than competition law, none of these actions have been brought yet before the French courts in the specific area of cartel damages claims.

Option 2 is the assignment model, in which the injured parties assign their claims to a private entity which acts as claim vehicle. The claim vehicle, rather than the injured parties, brings the case in its own name. There are two potential scenarios. According to a first scenario, the claim vehicle buys the claim for a price which is paid once and for all at the time of the assignment. In such a case, the assignor does not have any financial interest in the outcome of the case which is brought by the assignee in its own name. According to a second scenario, the claim vehicle buys the claim for a price which is totally or partially paid once the damages are recovered only. In this second scenario, the assignor keeps a stake in the outcome of the case brought by the assignee. However, as the assignees have transferred their claims to the assignors who will bring the claim in its own name, they bear no cost nor any risk and normally receive the lion’s share of the recovery (usually around 70%) whereas the rest goes to the claim vehicle/funder.

The French courts have not yet had the opportunity to decide in a cartel damage claim whether either of these two types assignments are valid under French law (let alone EU law). However, pursuant to the principle of contractual freedom (“principe de liberté contractuelle”) and that claims may be validly transferred pursuant to Article 1321 of the Civil Code, no rule prevents such an assignment of cartel damages claims under French law.

Assignors should however be particularly careful in two regards. Firstly, to the extent that the second type of assignment described above could be considered as an activity carried out by a recovery agency pursuant to Articles R124-1 to R124-7 of the civil procedural execution code, the assignee should hold a specific authorization to recover these damages. Secondly, assignees should pay specific attention to the right provided for in Article 1699 of the civil code. Pursuant to this Article, in cases where an assignor transfers a « claim » which is disputed before a court to an assignee, the debtor of the claim may put an end to the dispute by paying to the assignee the price (plus fees and costs) the assignee paid to the assignor to acquire the claim (the so-called « droit de retrait »). In other words, a claim vehicle which would buy a cartel damage claim which was disputed by the debtor before a court may end up being entitled to claim only the price (plus fees and costs) it paid to the assignor for that claim, instead of the full value of the claim.

Option 3 is the fiduciary model (“fiduciaire”), which allows injured parties to assign their claims to a fiduciary entity which sole role is to recover their damages. Unlike the assignment model in which assignors transfer theirs claim to a private company acting as a claim vehicle, injured parties become constituents and beneficiaries of the fiduciary entity which brings the claim in its own name. If the fiduciary entity is funded by a litigation funder, all the costs and risks of bringing the claim may be borne by the fiduciary entity rather than the injured victims. While Articles 2011 to 2030 of the civil code provide for the conditions pursuant to which the fiduciary entity may act, the courts have not yet had the opportunity to decide a case in which a fiduciary entity claims cartel damages. There is however no reason to think that the fiduciary mechanism, which presents some similarities with a US “trust” or Dutch “Stichting”, is not particularly adapted to bringing large cartel damages claims.


All in all we come to the conclusion that in the various member states of the European Union there is a variety in the possibility to ascertain claims by bundling them. Since we feel that it is adamant for claimants to bundle their claims (otherwise they would effectively be excluded from the possibility to pursue damages at all) we are curious whether in any jurisdiction the argument of the useful effect doctrine will be accepted to facilitate the bundling of claims.

Hans Bousie (editor), with contributions from:

Marc Barennes,

Tessel Bossen,

Giovanni Scoccini and

Konstantin Seifert


[1] European Commission decision of 9 October 2010 and 17 March 2017 Case AT.39258 (Airfreight).

[2] European Commission decision of 19 July 2016 Case AT.39824 (Trucks).

[3] ECJ 16 November 1977 case C-13/77, ECLI:EU:C:1977:185 (INNO/ATAB).

[4] ECJ 14 March 2019 case C-724/17, ECLI:EU:C:2019:204 (Skanska); ECJ 28 March 2019 case C-637/17, ECLI:EU:C:2019:263 (Cogeco).

[5] District Court Düsseldorf 17 December 2013 file no 37 O 200/09 (Kart) U; Higher Regional Court Düsseldorf 18 February 2015 file no VI-U (Kart) 3/14.

[6] Higher Regional Court Düsseldorf (fn 3), at rec. 104 seq.

[7] See, e.g., District Court Hannover 4 May 2020 file no 18 O 50/16.

[8] Federal Supreme Court 13 July 2021 file no II ZR 84/20.

[9] See, e.g. District Court Munich 7 February 2020 file no 37 O 18934/17.

[10] Federal Supreme Court 13 July 2021 file no II ZR 84/20, at rec. 55.

[11] File no 21 U 5563/20.

[12] File no 5 U 173/21.

[13] File no 7 U 130/21.

[14] File no 8 U 40/21.

[15] File no 29 U 1319/20.

[16] District Court of Amsterdam 2 August 2017 ECLI:NL:RBAMS:2017:5512, para. 4.14.

[17] District Court of Amsterdam (fn 14), para 4.12 et seq.

[18] District Court of Amsterdam 13 September 2017 ECLI:NL:RBAMS:2017:6607.

[19] Court of Appeal of Amsterdam 10 March 2020 ECLI:NL:GHAMS:2020:714, para. 4.10.5.

[20] Court of Appeal of Amsterdam (fn 17), para. 4.10.2.

[21] Court of Appeal of Amsterdam (fn 17), para. 4.10.3.

[22] The new legislative proposal for the Act on the Resolution of Mass Claims in Collective Action (Wet afwikkeling massaschade in collectieve acties, “WAMCA”) was adopted by the House of Representatives on 29 January 2019 and entered into force on 1 January 2020.

[23] Article 1018(i) par 2 Dutch Code of Civil Procedure.

[24] Article 1018(f) par 1 Dutch Code of Civil Procedure.

[25] Article 1018(f) par 5 Dutch Code of Civil Procedure.

[26] Trendtex Trading Corp v Credit Suisse (1982) AC 679 HL. 

[27] Jennifer Simpson (as assignee of Alan Catchpole) v Norfolk & Norwich University Hospital NHS Trust [2011] EWCA Civ 1149.

[28] JEB Recoveries LLP v Binstock [2015] EWHC 1063 (Ch).

[29] Casehub Ltd v Wolf Cola Ltd [2017] EWHC 1169 (Ch).

[30] The decree of the Ministry of Economy and Finance of 2 April 2015 no. 53 (MD 53), Article 3.

[31] MD 53 (fn 21), Article 2

[32] see Court of Venice 13 February 2013 No. 316; Court of Venice 2 September 2014 No. 1758; GdP of Rom 18 July 2016 No. 24510; GdP of Prato 1 February 2016 No. 80.

[33] Italian Criminal Court Section V No. 18317/2016.


Competition Flashback Q3 2021

This is the Competition Flashback by bureau Brandeis, featuring a selection of some of the key competition law developments of the past quarter (see the original version here).

If you would like to receive the next Competition Flashback by e-mail you can subscribe to our mailing list here.

Overview Q3 2021

  • Altice’s appeal against gunjumping fine dismissed by General Court
  • Commission launches two investigations into Google and Apple after preliminary report Internet of Things
  • ACM makes (long-awaited) turn and fines vertical price fixing agreements
  • Genuine or non-genuine agency? New interlocutory judgment in Prijsvrij/Corendon is not yet conclusive
  • ACM gives second green light for merger of Sanoma and Iddink
  • Prestressing steel cartel and elevators cartel: far-reaching duty to allege cartel damage and causality
  • Truck cartel damages: broad interpretation jurisdiction of national courts based on Erfolgsort
  • Automobile manufacturers fined € 975 million by European Commission for illegal technological discussions
  • Aircargo damage: flexible approach to the question of applicable law
  • Fine of € 19.5 million imposed on pharmaceutical company for charging excessive prices
  • ACM allowed to extend scope of investigation with accidentally obtained evidence


Altice’s appeal against gunjumping fine dismissed by General Court

General Court, judgement of 22 September 2021

In 2018, French telecom company Altice was fined twice € 62.25 million (a total of € 124.5 million) by the European Commission for its premature acquisition of PT Portugal. According to the Commission, Altice already had – and actually exercised – decisive influence over the day-to-day operations of PT Portugal before it obtained the necessary approval from the Commission. For example, it had the power to influence the (structure of the) senior management as well as the pricing policy of PT Portugal. You can read more about the case and the Commission decision in our blog on gunjumping.

Altice appealed the fine decision to no avail. On 22 September 2021, the General Court ruled in favour of the Commission. It held that the Commission had sufficiently established that Altice had effective control over PT Portugal and, moreover, that it actually exercised its control. The fine for the breach of the notification requirement, however, was reduced by 10% by the General Court, because Altice had notified the concentration to the Commission.

Commission launches two investigations into Google and Apple after preliminary report Internet of Things

European Commission, press releases of 22 and 20 September 2021

The European Commission has already launched two investigations relating to the Internet of Things investigations since the publication of its preliminary sector-wide report on June 9, 2021. The investigations concern Google and Apple. You can read more about the preliminary inquiry sector-wide report of the Commission in our blog on the Internet of Things.

The investigation into Google relates to the use of Google Assistant, the tech giant’s voice assistant. Google allegedly (ab)uses its Android operating system to exclude competing voice assistants. The Commission suspects that manufacturers of smart TVs and cars, for example, are being forced to (pre-)install Google Assistant as a standard service. This will give Google easy access to the user data of consumers of those products, which it can then use for its other services. The Commission is furthermore curious to know whether Google requires manufacturers to exclusively use Google Assistant, whether multiple voice assistants from different providers can be used simultaneously, and whether manufacturers receive a portion of the advertising revenue generated on the device from Google.

With respect to Apple, the Commission’s investigation focuses on how Apple’s iPhones and iPads interact with wearable devices (“wearables”). These include smartwatches, fitness bands and wireless headphones. The Commission is concerned that there may have been technical and/or contractual restrictions placed by Apple regarding the interoperability of iPhones/iPads with such wearables. This would entail that it is more difficult for wearables of other manufacturers to compete with Apple’s wearables, such as Apple Watch or AirPods. The Commission has now asked manufacturers of wearables whether Apple raises obstacles with regard to accessing features on iPhones and iPads, such as reading and replying to messages via the wearable or location services thereof. Both investigations are still ongoing.

ACM makes (long-awaited) turn and fines vertical price fixing agreements

ACM, decision of 14 September 2021

On 14 September 2021, the Netherlands Authority for Consumers and Markets (“ACM“) imposed a fine of over € 39 million on Samsung for influencing the online selling prices of its television sets. In its decision, the ACM finds that Samsung infringed the cartel prohibition by exercising undue pressure on seven of its retailers in the period between 2013 and 2018.

Samsung monitored the online retail prices of its television sets through so-called spider software and analysed their price movements. If it was alerted (through complaints of competing retailers) on a retail price lower than its desired market price, it contacted the retailer and urged it to increase its prices. Although Samsung only maintains ‘price recommendations’ and the agreements between Samsung and retailers stipulate that they are free to determine their own retail prices, the ACM concluded that these ‘recommendations’ in practice lead to illegal price-fixing.

The ACM held that Samsung’s monitoring, internal coordination and external communication are aimed at controlling and minimising price deviations. By frequently and individually contacting retailers about retail prices and informing them of the price intentions of their competitors, the ACM speaks of a systematic practice of price coordination between Samsung and its retailers. As retailers are consequently discouraged from lowering their prices and consumers are confronted with a higher price, the ACM held that Samsung’s behaviour had the object of restricting competition.

It is the first time in twenty years that the ACM has showed interest in vertical price agreements. In doing so, it appears to abandon its effects-based approach to vertical restraints and to align with the strict approach of the European Commission and other national competition authorities. In 2018, the Commission imposed four fines of in total € 111 million on Asus, Denon & Marantz and Philips for monitoring and pushing retailers’ prices. German authorities also maintain a strict approach. The Bundeskartellamt has for example been very active in fining resale price maintenance practices in recent years, and in 2018 the German Bundesgerichtshof confirmed that Asics may not prohibit its retailers from participating in price comparison websites.

For more insights into competition law in vertical relationships read our blog.

Genuine or non-genuine agents agency? New interlocutory judgment in Prijsvrij/Corendon is not yet conclusive

Amsterdam Court of Appeal, (interlocutory) judgment of 31 August 2021

A long-running dispute is ongoing between Prijsvrij and Corendon regarding the termination of an agency agreement by Corendon. In a recently published interlocutory judgment (in Dutch) of 3 December 2019, the Amsterdam Court of Appeal formulated a number of evidentiary assignments. Subsequently, on 31 August 2021, the Court of Appeal issued a new interlocutory judgment (also in Dutch) in the context of those evidentiary assignments.

The case between Prijsvrij and Corendon is of essential importance for sectors where resellers are frequently used, such as the travel sector. The main question is under which circumstances these agents can be qualified as ‘genuine’ agents within the meaning of competition law. This requires that the agent bears no or minimal commercial risks, so that the principal and its agent form a single economic unit. Only in that case is the cartel prohibition, including the prohibition on resale price maintenance, not applicable. In the case of genuine agency the principal may compel its agents to apply certain prices.

In the past, Prijsvrij was active as a reseller of Corendon’s package holidays until Corendon terminated its agreement with Prijsvrij in 2013. The Court of Appeal considered it (provisionally) proven that the reason for the termination could be found in the discounts offered by Prijsvrij to consumers. Such termination can be an instrument to achieve resale price maintenance and is therefore prohibited, unless Prijsvrij was a genuine agent of Corendon. In the interlocutory judgment the Court of Appeal gave Corendon the evidentiary assignment to prove that Prijsvrij qualified as an genuine agent.

In the context of these principal points of contention, Prijsvrij and Corendon have submitted documentary evidence and Corendon has called a number of witnesses. In doing so, a discussion has arisen as to whether the Court may include all of this evidence in its assessment of the evidence.

In its recent interlocutory judgment of 31 August 2021, the Amsterdam Court of Appeal decided to include all evidence submitted earlier and to reopen the examination of witnesses. Thereafter, the Court of Appeal will rule and is expected to provide clarity on the application of the doctrine of genuine agency.

*Bas Braeken and Jade Versteeg represent Prijsvrij in these proceedings.

ACM gives second green light for merger of Sanoma and Iddink

ACM, decision of 26 August 2021

Sanoma may take over Iddink according to a recent second decision of the ACM on the matter. Sanoma is a publisher of both traditional and digital educational materials through its subsidiary Malmberg. Iddink is a distributer of educational materials and owns Magister – a student information system (“SIS”) and electronic learning environment (“ELO”).

The licence application for the concentration of Sanoma and Iddink was submitted to the ACM in January 2019. After the ACM had conditionally approved this merger mid-2019, rival publisher Noordhoff filed an appeal against this decision with the Rotterdam District Court. In its ruling (in Dutch) of 4 March 2021 the District Court annulled the contested decision of the ACM due to a failure to sufficiently state reasons. The Court held that the ACM should have conducted more research into the possible need of schools for ‘bundling’ the digital teaching materials and the electronic learning environment. If there were such a need, the concentration between Sanoma and Iddink could lead to market foreclosure.

In its recent decision, dated 26 August 2021, the ACM again approved the concentration under the same conditions as before. The ACM provided additional reasoning as to why it is not plausible that the concentration would lead to market foreclosure through anticompetitive bundling. The ACM argued that there are different procurement procedures for teaching materials and the ELO/SIS, with different timeframes.

Consequently, schools do not have the need to purchase teaching materials and an ELO/SIS at the same time. In addition, the ACM maintains that prices are of little importance for a school’s selection of educational materials. Schools are primarily focused on quality, which limits the possibility for Sanoma/Iddink to apply a bundling strategy. The ACM also considers it implausible that there is an incentive for Sanoma/Iddink to bundle products.

In a press release (in Dutch) of 27 August 2021, the ACM announced that it will appeal the ruling of the Rotterdam District Court since it believes that its original decision did not contain a lack of reasoning.

Prestressing steel cartel and elevators cartel: far-reaching duty to allege cartel damage and causality

‘s-Hertogenbosch Court of appeal, judgement of 27 July 2021 | Rotterdam District Court, judgement of 23 June 2021

Recently, two judgments were published that are relevant for the duty of an injured party (‘plaintiff’) to allege damages and causality in cartel damage cases. In cartel damages proceedings the plaintiff must allege and prove that his or her damages were caused by the cartel in order to be awarded compensation. An important aspect in that regard concerns the data that is necessary to further substantiate such claims.

On 27 July 2021, the Court of Appeal of ‘s-Hertogenbosch ruled (in Dutch) that Deutsche Bahn, who is the plaintiff in this case, must bring forward sufficient factual evidence to make it plausible that it suffered damage as a result of the prestressing steel cartel. Such factual evidence concerns information that specifies which cartel products were purchased, when, from whom and at what price. The submission of a few examples is considered insufficient by the Court of Appeal.

When providing concrete evidence a plaintiff must prove the identity of the cartel participants and provide insight into its transactions with them (on the basis of contracts, invoices, packing slips, administrative data, annual documents, etc.). Although the substantiation of a claim should normally take place in the early stages of proceedings, the Court of Appeal gave Deutsche Bahn the opportunity to provide the required evidence at a later stage.

In a judgment (in Dutch) of 23 June 2021 (published on 12 July 2021) the Rotterdam District Court provided other relevant guidance regarding the duty to furnish facts in relation to damages and causality. In the elevators cartel damage case, the District Court assessed whether Stichting De Glazen Lift (a claim foundation representing housing associations) had fulfilled its obligation in that regard.

The District Court ruled that in the event of concrete indications that an agreement was concluded between a housing association and one (or more) cartel participant(s) during the infringement period it is plausible that damages were suffered and caused by the cartel.

The District Court then examined for each housing association whether the foundation submitted sufficient documents to make the damage plausible. For each individual (underlying) claimant, it must be shown that the party claiming damages contracted with or paid a cartel participant during the infringement period.

Lastly, the District Court ruled that, in view of rental price regulation, it is unlikely that the housing associations could have passed on their damages to their tenants by raising rent. Therefore, it is plausible that the installation of a elevators and escalators is at the expense of the housing associations. The District Court concluded that all the housing associations sufficiently alleged damages and causality and referred the proceedings for the determination of damages.

Truck cartel damages: broad interpretation jurisdiction of national courts based on Erfolgsort

CJEU, judgment of 15 July 2021

On 15 July 2021, the Court of Justice of the European Union (“CJEU”) ruled in RH v Volvo on how national courts should interpret article 7(2) of the Brussels I-bis Regulation, after preliminary questions were asked by a Spanish national court. The CJEU ruled on an interpretation for jurisdiction based on the place where the damage occurs, also referred to as ‘Erfolgsort’. The CJEU held that article 7(2) does not only relate to international jurisdiction (which Member State has jurisdiction), but also to territorial jurisdiction (which court within a Member State has jurisdiction).

Firstly, the CJEU holds that, in the case of damage resulting from a cartel that concerned the whole of the European Economic Area (“EEA”), the place where the damage occurred is considered to be within that entire market. This includes Spain, so the Spanish national courts have international jurisdiction.

Subsequently, the CJEU addresses the question on territorial jurisdiction. It observes that it is clear from the wording of article 7(2) that this provision directly and immediately aims to regulate both international and territorial jurisdiction. Nevertheless, Member States are free to designate a specific court to deal with certain specific types of disputes. In the absence of such national centralisation of competence/jurisdiction, territorial jurisdiction must comply with the principles of proximity, foreseeability and the proper administration of justice.

According to the CJEU, the court of the place where the goods of the cartel participants were purchased – possibly indirectly – has primary territorial jurisdiction. If the plaintiff has purchased goods in several jurisdictions, the seat of the plaintiff should determine the territorial jurisdiction. This reasoning is in line with the aforementioned principles, inter alia because cartel participants are deemed to be aware of the fact that the customers are located in the (entire) market affected by the anti-competitive conduct.

Automobile manufacturers to be fined € 975 million by Commission for illegal technological discussions

European Commission, decision of 8 July 2021

In a recent decision the European Commission has determined that DaimlerBMW and the Volkswagen group (VolkswagenAudi and Porsche) violated competition law by jointly agreeing on technological development in the field of emissions cleaning. Daimler avoided a fine of € 727 million because it reported the conduct to the Commission.

The infringement is notable because this is the first time that a cartel decision has targeted agreements and contacts that took place as part of technological discussions related to innovation, rather than classic price or customer allocation agreements. For this reason, the fines were reduced by 20%.

Although the investigation started as a full-fledged cartel investigation, it was concluded with a voluntary settlement procedure. In addition, Daimler applied for leniency. BMW submitted a comprehensive statement after which the Commission dropped some of its allegations against the German car manufacturer.

Air cargo damages: flexible approach to the question of applicable law

Amsterdam Court of Appeal, (interlocutory) judgement of 6 July 2021

In its judgment (in Dutch) of 6 July 2021, the Amsterdam Court of Appeal ruled on the question of applicable law in the Air cargo damages proceedings. Many plaintiffs suffered damages as a result of paying excessive fees for the shipments of air cargo. Their claims are bundled in foundations Equilib and SCC.

As a preliminary matter, the Court of Appeal rules that it can rely on the facts determined by the European Commission in the cartel decision, even though that decision is still under appeal before the European Courts.

The Court of Appeal then ruled on the question of whether article 4 of the Dutch Tort Conflict of Law Act (“WCOD”) offers the relevant legal framework to answer the question of applicable law. The Court of Appeal finds that, in principle, for each separate claim of each individual plaintiff the damage resulting from a specific flight, the applicable law is that of the State in which the airport of departure is located.

The Court of Appeal subsequently observed that this outcome leads to a strong fragmentation of applicable laws. Strict application of article 4 WCOD would lead to dozens of different applicable legal systems. To avoid this fragmentation, the Court of Appeal first rules that the separate claims of each plaintiff should be considered as one single claim, in analogy with the concept of a single continuous infringement as applied by the Commission in its cartel decisions. Second, the Court of Appeal considers that not only the airport of departure is relevant for determining the applicable law, but also the airport of arrival. Article 4 WCOD does not limit its scope to the place in which competition is directly affected by the anticompetitive behaviour, but also the place that is indirectly affected (e.g. in case of umbrella damages).

The international nature of airline services results in the distortion of competition in multiple places, as is also confirmed by the Commission in its decision. As a result, the Court of Appeal considers that the claim of a plaintiff is governed by several national jurisdictions. The WCOD does not provide for a solution in such instances, however. To fill this legislative gap, the Court of Appeal relies on broadly shared EU principles, such as legal certainty and effectiveness. It notes that the EU legislator has addressed this issue in article 6(3) sub b of Regulation (EC) No 864/2007 (‘Rome II’), in which claimants may choose the applicable law, albeit under strict conditions.

Given that Equilib and SCC requested that Dutch law is applicable, the Court of Appeal concludes that the follow-on damages claims of the foundations are governed by Dutch law. This applies to all claims relating to flights falling within the scope of the cartel decision (flights departing and/or arriving in the EEA and Switzerland).

Fine of € 19.5 million imposed on pharmaceutical company for charging excessive prices

ACM, decision of 1 July 2021

In a decision of 1 July 2021 the ACM imposed a fine of € 19.5 million on the Italian pharmaceutical company Leadiant, manufacturer of chenodeoxycholic acid (“CDCA”). The ACM ruled that Leadiant had abused its dominant position by charging an excessive price for the medicine. It is the first decision imposing a fine that concerns medicine prices after the ACM announced that it will conduct more investigations into medicines in 2018.

Leadiant acquired the right to produce CDCA from another pharmaceutical company and has been selling it on the Dutch market since 2008. In 2008, the price for a package of CDCA in the Netherlands was € 46. After that, Leadiant increased the price of CDCA, which it sold under changing brand names, several times until it finally reached a maximum of € 14,000 per package in June 2017.

The ACM ruled that Leadiant abused its dominance in the period from June 2017 to December 2019. According to the ACM Leadiant had a special responsibility in the context of its dominant position to abstain from charging excessive prices. The ACM accuses Leadiant of failing to fulfil its responsibilities in this respect and that the (excessively high) prices charged were out of proportion to its costs.

ACM allowed to extend scope of investigation with accidentally obtained evidence

District Court of The Hague, judgement of 3 June 2021 (published on 12 July 2021)

On 3 June 2021, the District Court of The Hague rendered an anonymised judgment in instituted by a number of undertakings whose premises had been raided by the ACM. The investigation of the ACM initially focused on possible prohibited purchasing price agreements. However, during the Dawn Raid the ACM also found indications of possible agreements on the selling price. Based on this information the ACM expanded the scope of its investigation. You can read more about Dawn Raids in this blog.

An important question was whether the ACM had not merely cursorily examined this information and whether the ACM was allowed to use the information for the purpose of extending the scope of its investigation. The Court ruled that the ACM, on the basis of the Deutsche Bahn judgment of the CJEU, is allowed to take a cursory look at evidence (in the present case: chat messages and e-mail conversations) in order to assess whether something falls within or outside the scope of the investigation. The ACM does not have to limit itself to viewing the most recent message while keeping the scope of the investigation in mind. In view of the interwovenness between the new evidence and the original scope of the investigation, the Court did not find it remarkable that the ACM stumbled upon the evidence by chance.

In addition, the Court was asked whether the ACM is allowed to select relevant chats by entering the names of persons in the chat program when inspecting mobile phones. The Court ruled that the search on names of persons is proportionate and thus permitted.


For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist you. You can reach us via the links below.

Bas BraekenJade VersteegLara ElzasTimo Hieselaar, Demi van den Berg and Berend Verweij


Competition Flashback Q2 2021

This is the first Competition Flashback by bureau Brandeis, featuring a selection of some of the key competition law developments of the past quarter (see the original version here).

If you would like to receive the next Competition Flashback by e-mail you can subscribe to our mailing list here.

Overview Q2 2021

  • Notarial deed paper cartel; fine reduced from €2 million to €10,000
  • CJEU Recyclex: antitrust immunity only in the case of an extended infringement
  • Fine of €40 million for Dutch railway company NS struck down by Court
  • Private equity firm can recover cartel fine for incorrect information during due diligence
  • State Aid to KLM and Condor called into question as a result of inadequate reasoning
  • New ACM merger decision Sanoma/Iddink on the way after appeal by Noordhoff
  • Preliminary findings in the truck cartel damages case: claimants may go ahead
  • European Commission takes on Apple after Spotify complaint


ACM publishes notarial deed paper cartel four years later; fine reduced from €2 million to €10,000

ACM, press release of 1 July 2021 | Rotterdam District Court, judgment of 11 May 2021

Almost four years after the first fine decision, a long-running cartel case has been made public with the publication of a news release and a number of decisions by the Dutch Competition Authority (“ACM”). At the same time, the Rotterdam District Court also published two judgments in this cartel case (Rotterdam District Court judgments of 6 December 2018 and 11 May 2021, as published on 30 June and 1 July 2021).

At the centre of this case were (alleged) price and market sharing agreements on the market for notarial deed paper. This case revolved around agreements between one producer (of which the subsidiary that implemented the cartel agreements was separated from the parent company during the infringement period) and two distributors. All three parties supplied notary’s offices with notarial deed paper.

For the agreements concerning these sales the ACM imposed a fine of almost €2.8 million on the producer in a decision dated 17 February 2017 (whereby the parent company was held jointly and severally liable for the entire sum and the subsidiary for €2.06 million). One natural person, the de facto manager of the producer, was (initially) fined €200,000 (reduced to €80,000 after an objection). One distributor was fined €3,000 and the third distributor received full immunity from fines under the 2006 Notice on immunity from fines and reduction of fines in cartel cases (“Leniency Notice“).

Initially, the interim relief judge of the Rotterdam District Court suspended the decision of the ACM to publish the fine decision (judgment not yet published). The interim relief judge considered that the contentious agreements were vertical in nature and not horizontal. The Rotterdam District Court saw this differently and ruled that Article 2 (4) (a) of the Block Exemption for Vertical Agreements is not applicable. Based on this provision, agreements between competing companies (i.e. agreements of a horizontal nature) can also fall under the Block Exemption if there is a “non-reciprocal vertical agreement”, whereby the supplier is both a manufacturer and a distributor and the buyer is only a distributor. According to the Court, however, the agreements are (purely) horizontal in nature.

The Court also considered that in the case of object restrictions, no analysis of the counterfactual is required. The counterfactual refers to the market situation as it would have been without the alleged agreements. The producer had argued that without the distribution agreements it had entered into there would have been no competition at all. Indeed, until recently, the market for notarial deed paper was strictly regulated on the basis of rules of the Royal Dutch Association of Civil-law Notaries.

The District Court did not follow this line of reasoning. The Court, however, did rule that the ACM had set the gravity factor too high and lowered it from 2.75 to 1, and set the fine for the producer at €1 million and for the de facto manager at €60,000. A previously published judgment by the Trade and Industry Appeals Tribunal (“CBb“) shows that the producer’s fine was eventually reduced to €10,000. The difficult financial situation in which the company found itself as a result of the Covid 19 crisis was partly the basis for this reduction.

CJEU Recyclex: (partial) immunity from cartel infringement only if the scope of the infringement is extended

Court of Justice, judgment of 3 June 2021

On 3 June 2021, the Court of Justice (“CJEU”) delivered a judgment on the interpretation and application of the conditions set out in the third paragraph of point 26 of the Leniency Notice.

Recyclex had relied on the third paragraph of point 26 of the Leniency Notice when it provided the European Commission (“Commission“) with information about a particular meeting within the Car battery recycling cartel in which it participated. Recyclex submits that the Commission would have been unable to provide sufficient evidence of this particular meeting and therefore claims to be entitled to partial immunity. In this respect, according to Recyclex, it is irrelevant that the Commission was already aware of the fact that the meeting had taken place.

The CJEU does not share this view and holds that undertakings concerned can claim partial immunity only if they provide the Commission with evidence which “complement or supplement those of which the Commission is already aware and which alter the material or temporal scope of the infringement, as found by the Commission.

Therefore, in order to successfully claim (partial) immunity on the basis of the third paragraph of point 26 of the Leniency Notice a cartel participant must provide the Commission with information on new facts which alter the original scope of the infringement.

Fine for Dutch railway company NS struck down by Court because dominance was not proven

CBb, judgment of 1 June 2021

In its judgment of 1 June, the CBb struck down a fine of more than €40 million that the ACM had imposed on Dutch railway company NS. The ACM had adopted this fine in a decision of 22 May 2017 alleging that NS had abused its dominant economic position.

According to the ACM, NS used its economic dominance on the main rail network (“HRN“) of the Netherlands to hinder its competitors Arriva and Veolia in the province Limburg. Specifically, in 2016 NS had submitted what the ACM considered to be a loss-making bid in the tender for a 15-year public transport concession in Limburg.

The Rotterdam District Court ruled in its judgment of 27 June 2019 that the ACM had not convincingly proven that NS actually had a dominant economic position. In addition, according to the District Court, the link between NS’ position on the HRN and the concession in Limburg was uncertain after 2024 (the concession for the HRN expires in 2024).

The CBb largely confirmed the ruling of the Rotterdam District Court. The ACM did not prove that NS has a position of economic dominance. According to the CBb, there is (potential) competition as the barriers for entering the HRN market is not too high. The fine of more than €40 million that the ACM had imposed on NS has therefore been permanently struck down.

Private equity can recover cartel fine in case of incorrect information during due diligence

Rotterdam District Court, judgment of 26 May 2021

Between November 2004 and July 2011 private equity firm Bencis held 92% of the shares in flour producer Meneba (now acquired by Dossche Mills). During this period Meneba was fined by the ACM for its participation in the flour cartel. This decision was confirmed by the ACM after administrative objection, by the Rotterdam District Court on appeal and by the CBb on further appeal.

Almost four years after the first decision and under the influence of European developments, the ACM (also) imposed a cartel fine of over €1,2 million on Bencis because of Meneba’s participation in the flour cartel. The basis of Bencis’ liability was that it had decisive influence on Meneba due to their close economic, organisational and legal ties. Therefore, according to the ACM, the infringement could also be attributed to Bencis.

Bencis is later seeking to recover this fine from Meneba in a case heard by the Rotterdam District Court. To this end, Bencis primarily argued that only Meneba factually participated in the cartel agreements. In its judgement of 26 may the Rotterdam District Court did not uphold Bencis’ claim. It considered that there is no room for recourse on the basis of a joint obligation (Article 6:10 Dutch Civil Code (“BW”)) since Bencis and Meneba were not fined jointly and severally. It also considered that there is no room for a claim based on tort (Article 6:162 BW). The tort claim failed on the basis of the relativity requirement, since the right to compensation for cartel violations does not extend to the protection of other cartel participants (see Courage/Crehan).

However, the judgement of the Rotterdam District Court is unlikely to be the end of this matter. At the hearing, Bencis argued that Meneba, within the context of a due diligence investigation prior to the acquisition of the shares by Bencis, had allegedly stated that no infringements, including infringements of competition law, had taken place. If Bencis succeeds in proving this with documents, this could, according to the Court, constitute an unlawful act by Meneba towards Bencis.

State aid to KLM and Condor called into question as a result of inadequate reasoning

General Court, judgments of 19 May 2021 and 9 June 2021

On 19 May 2021, the General Court in Luxembourg held that the Commission wrongly approved the €3.4 billion state aid granted to KLM on the basis of Article 107(3)(b) TFEU. This article provides for the possibility to grant aid to remedy a serious disturbance in the economy of a Member State, such as caused by the COVID-19 crisis. In its decision, the Commission did not provide sufficient reasoning by failing to adequately take into account the fact that KLM and Air France, both part of the same group, have been the recipient of two aid measures.

In its decision the Commission states that the Dutch authorities ‘confirmed’ that the financing granted to KLM would not be used by Air France. However, in the General Court’s view, the Commission failed to provide sufficient reasons as to how this would be guaranteed. In that regard, the relationship between KLM and Air France within the group – and the aid granted to them – was not sufficiently taken into account. Although the decision has been annulled, the aid granted does not have to be recovered immediately. KLM may keep the aid at least until the Commission has adopted a new decision.

The decision in which the Commission approved the German aid to airline Condor was also annulled by the General Court on the ground that it contained insufficient reasoning. The aid, based on Article 107(2)(b) TFEU, was intended to compensate Condor for the damage caused directly by the COVID-19 pandemic.

However, the German authorities included approx. €17 million in additional costs in the aid for Condor, because the latter was under an insolvency procedure following the liquidation of its parent company (Thomas Cook). This procedure started well before the outbreak of the COVID-19 pandemic, though. The Commission did not explain how (the costs surrounding) the failed sale of Condor in the insolvency procedure were related to the COVID-19 pandemic.

In this case, too, the aid granted will not be recovered immediately. In order to avoid direct damage to the German economy, Condor is allowed to keep the amount until the Commission has taken a new decision.

New ACM merger decision in Sanoma/Iddink coming after successful appeal by Noordhoff

ACM, announcement of 17 May 2021

On 28 August 2019, the ACM decided that Sanoma Learning (publisher of Malmberg schoolbooks) may acquire Iddink Group, distributor of educational material, conditional upon commitments. Iddink Group owns Magister, an electronic learning management system that many secondary schools in the Netherlands use. The commitments ensure that competitors have equal access to Magister and data from Magister after the merger. In addition, the merging parties must guarantee that no commercially sensitive information from competing publishers will be shared with Malmberg via Iddink.

Noordhoff, a competitor of Malmberg, did not agree with the ACM and appealed the decision. In its ruling of 4 March 2021, the Rotterdam District Court annulled the ACM’s decision.

According to the Court, the ACM had not sufficiently substantiated that post-merger Sanoma/Iddink has no possibility to foreclose competitors by means of bundling and that therefore no conglomerate effects existed. The ACM has announced that it will take a new decision and has also appealed against the District Court’s ruling.

Interim position truck cartel damages case: green light for the time being

Amsterdam District Court, judgment of 12 May 2021

On 12 May 2021, the Amsterdam District Court rendered an interlocutory judgment in the damages claim proceedings instituted by, among others, CDC against participants in the Truck Cartel. This judgment is limited to (i) an assessment of the scope of the Commission’s penalty decision, and (ii) the truck manufacturers’ defence that the exchange of information did not have a price-increasing effect and that the infringement therefore did not result in any damage.

With regard to the first point, the Court finds that it is bound by (the operative part of) the Commission’s decision regarding (the temporal and geographical scope of) the infringing behaviour as well as the persons liable for it. However, this does not exclude plaintiffs from providing further factual interpretation of the infringing behaviour.

With regard to the second point, the Court considered that the truck manufacturers must demonstrate that it is generally impossible that the infringement could have resulted in damage. Based on the expert reports, the Court finds that this has not been established. It is therefore up to the plaintiffs – for the remainder of the proceedings – to make it plausible that they have possibly suffered damage as a result of the unlawful actions of the truck manufacturers. This is needed to meet the threshold for referral to the damages assessment procedure.

Commission takes on Apple after Spotify complaint – national authorities follow

European Commission, press release of 30 April 2021

In March 2019 Spotify lodged a complaint with the Commission accusing Apple of distorting competition on the market for music streaming services offered through the App Store. Spotify claims that Apple is abusing its full control over the iOS mobile operating system and the App Store to impose unfair terms on competitors, such as Spotify, and to favour its own music streaming service Apple Music.

On 16 June 2020, the Commission launched an investigation into Apple’s policies on the App Store. In its press release of 30 April 2021, the Commission stated that in the Statement of Objections it had reached the preliminary view that Apple was abusing its dominant position. The Commission accuses Apple of forcing competing music streaming services to use the App Store’s ‘in-app’ purchase mechanism and charging a 30% commission in return.

In addition, the Commission’s objections relate to so-called ‘anti-steering provisions’ that restrict app developers in their ability to inform customers of alternative purchasing options. National authorities such as the ACM and the British CMA have also started investigations into these practices by Apple.


For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist you. You can reach us via the links below.

Bas BraekenJade VersteegLara ElzasTimo Hieselaar en Berend Verweij


Developments in the Netherlands

Since our previous blog the Gaming Authority (Kansspelautoriteit; “Ksa”) published the (preliminary) final version of the Policy rules licensing remote gambling (Beleidsregels vergunningverlening kansspelen op afstand).

Most important points:

  • The Policy rules Koa confirm the new timelines, start application process by 1 April 2021 and the extension of the cooling off to 2 years and 9 months.
  • The requirements for the outsourcing of activities have been simplified: applicants must provide an overview of the work that will be contracted out and to whom, including an overview of the agreements concluded for this purpose. However, the agreements no longer have to be submitted directly with the application. The Ksa can, however, request these later.
  • Player funds can now also be secured by the use of a third party bank account.
  • The 3 forms to be submitted in connection with the audit of the gaming system have been included. The Ksa also published an updated version of the inspection calendar.
  • A new Article 19 on the use of existing personal data, which incorporates the ban on the use of existing customer data acquired by unregulated operators before obtaining a license. This clause prohibits the use of an existing customer database for (b) marketing and advertising plus for (c) the registration of players. These restrictions will also be included in the license terms as was illustrated by the draft license as published.

The Ksa also published a new version of the Policy Rules on Responsible Playing (Beleidsregels verantwoord spelen).

Compared to the version of 19 October 2021, it includes:

  • A more general elaboration of what players qualify as vulnerable groups.
  • A further specification of the risk analysis of the gaming offer and the reporting thereof to the Ksa.
  • A further elaboration of the scope of the investigation of possible problematic gaming behavior.

The Ksa also published a new version of the Guidelines for the Prevention of Money Laundering and Terrorist Financing Act (Leidraad Wet ter voorkoming van witwassen en financieren van terrorisme). Most important change is the fact that matchfixing is now integrated as an AML risk.

Should you have any questions on the above, please contact Machteld Robichon or Fransje Brouwer 


Update Remote Gambling in the Netherlands: opening market 1 October 2021 and publication of final lower legislation

Last month the Minister for Legal Protection confirmed in line with previous speculations that the Remote Gambling Act (Wet Kansspelen op afstand, “Act”) will take effect on 1 April 2021 instead of 1 March 2021. This leaves the first group of applicants that can apply for a license as of on 1 April 2021 with a little less than 8 weeks before filling the application. The processing of the applications is expected to take 6 months. The market for online gambling is therefore expected to open on 1 October 2021.

Now that the entry into force is delayed with one month delay, the so called  ‘cooling-off period’, the waiting period for unlicensed operators, has also been extended to 2 years and 9 months.

Last week marked an important step: the publication of the final versions of the lower legislation, consisting of:

With this the formal legislation for the introduction of online gambling licenses is now finalized. That is good news!

Around mid-February 2021, we also expect that the Gaming Authority (Kansspelautoriteit; “Ksa”) will publish the amended policy rules, including the Policy rules license remote gambling and the Policy rules responsible gaming.

Also good news is that the changes in the final versions is very limited.

Below we highlight the most important changes in the lower legislation.


The amendments in the Decree are very limited.

  • Registration: as part of the registration the ‘gender’ of a player is no longer registered.
  • Payment transactions: some wording in Article 4.27 Dree has been deleted so that corrections of payments are no longer limited to “the consequences of a technical malfunction of the gaming system“, which indicates that a general reservation applies for corrections of payments.
  • The time slot for advertising for online gambling on television and radio from 6 am to 9 pm has been deleted in the Decree. However the time slot will still be effective, but it will apply on the basis of the Media Act (Mediawet 2oo8).
  • A new Article, Article 7.1, introduces a basis for the temporary exemption for the formal appointment of inspection bodies by the Minister. This exemption was already announced earlier and is now implemented in artikel 6.1 of the Regulation and applies for maximum two years after the Act takes effect.
  • The entry into force of the player exclusion register (Centraal register uitsluiting kansspelen; “Cruks”) is postponed with six months. It will only take effect on 1 October 2021. This means that all licensed providers will have to implement CRUKS as of 1 October 2021.


The amendments in the Regulation are also limited.

  • Article13 on the retention of (personal) data has been slightly amended.
  • There is no obligation to report match-fixing to the Ksa if the FIU has already been notified; this follows from the new Article 3.15a.
  • A few amendments have been made regarding match fixing, including appendix 2 and the applicable categories/matches. This also applies to appendix 1 of the Implementing regulation.

Explanatory memorandum to the Decree

The explanatory memorandum to the Decree has been adjusted on a number of aspects, partly in response to the legislative advice from the Council of State. The scope of these adjustments is also restricted.

Below we highlight the most relevant parts of the additional clarification:

  • Further substantiation was provided on the control database and why it should be located in the Netherlands for reasons of effectiveness of compliance monitoring and enforcement.
  • Further guidance was provided regarding the representation by a representative in the Netherlands:

    “The purpose of that representative is to ensure the effectiveness of the licensee’s addiction prevention policy for players in the Netherlands as much as possible. The effectiveness of such prevention policy is not optimal if it is not constantly well connected to (the practice of) the Dutch healthcare system, the assistance needs of Dutch (problem) players and the assistance actually available to them in the Netherlands.”“The representative’s task is to maintain, on behalf of the license holder, those contacts with the relevant parties in the Netherlands that are necessary for the continuous and effective connection of the addiction prevention policy to the Dutch healthcare system and the healthcare needs of the Dutch player, to make arrangements in that respect, and to advise the license holder in this regard with a view to the continuous maintenance of its addiction prevention policy. The actual implementation of the prevention policy towards individual players is not part of his duties. That is the task and responsibility of the licence holder. It is also up to the license holder to incorporate the information from his representative(s) in his addiction prevention policy. This may relate, for example, to the (further) development of the addiction prevention courses for its employees, the general information on addiction prevention for Dutch players, the personal intervention talks with such players and their referral to the appropriate care in the Netherlands.”

    For example, it is not required that the representative must be established or resident in the Netherlands. However, he does have to be actually present in the Netherlands to a sufficient extent to be able to carry out his activities properly. Nor are any other requirements set for language skills than that he must be able to communicate in the Netherlands in a language that the relevant Dutch discussion partners sufficiently master. This is a less far-reaching restriction than the obligation to use only Dutch. It follows that the requirement of proportionality is met. The effect of the representative in the Netherlands in practice shall be closely monitored and the effectiveness for the prevention of addiction in the Netherlands shall be included in the evaluation of the regulation of remote gambling. If necessary, the requirements will be adjusted accordingly.”

  • A brief justification regarding the processing of personal data has been added:

    “These include the obligation to register data on gambling behaviour, including the frequency with which the player visits a gambling website or a land-based gambling casino or amusement arcade. Such data may include health data, which may reveal problematic or addictive behaviour. The purpose of these regulations is, pursuant to Article 5(1)(a) of the GDPR, well-defined and explicit as the prevention of unauthorised participation in games of chance or of gambling addiction.”“The various registration requirements, including visitor registration, are necessary in order to gain a good insight into the playing behaviour of players, to assess whether there is excessive participation and then to be able to intervene in time.”

    “The personal data that is recorded and stored must be limited to what is necessary for those purposes and may not be stored for longer than is strictly necessary. The retention periods are laid down by Ministerial Regulation.”

  • Enforcement against unlicensed operators is discussed in more detail, including the new powers that will be introduced in the Act for the Ksa:
    • Mystery shopping: this enables the Ksa to participate in games of chance under a false name;
    • Binding instructions to be issued to service providers, including payment service providers, to cease providing services to providers that illegally offer games of chance;
    • The international cooperation through memorandums of understanding (MoU’s) with foreign regulators within the EEA in order to share information regarding (potential) unlicensed operators and to cooperate in the area of supervision and enforcement.
  • More guidance is given how license holders will be supervised:
    • Through the inspection of the game system by accredited testing bodies;
    • Via the control database;
    • Through the necessary reporting requirements;
    • By demanding information:

      The Dutch Gaming Authority can also demand information and inspection of business data and documents from license holders established outside the Netherlands. Within the framework of international cooperation in the field of supervision and enforcement, it can also request information about such license holders from the relevant foreign regulators.”

      “Compliance monitoring by the Dutch Gaming Authority is risk-driven and carried out on the basis of risk analyses, thematic research, signals and random sampling. To this end, data from the reports of the license holder, from the control database, from inspection reports and from any reports about the licensee are considered in relation to the behaviour of that licensee on the gambling market, reports from other licensees and other available information, for example from foreign gambling supervisors. If there is any doubt about the correctness of the data supplied by a licensee, the Gaming Authority will in any case proceed to further investigate that licensee. In this respect it can demand further information and substantiation.
      If necessary, it shall demand that data or documents are provided or explained in person by an officer of the licensee whom it shall determine. If necessary, it may order an additional inspection of certain parts of the gaming system. It shall also have direct access to the primary systems of the licensee.”“With this, the chance of knowingly and systematically providing incorrect data is very high. It is also not in the interest of the licence holders – whose reliability and suitability has already been assessed prior to the granting of the licence – to provide incorrect data, as they would then run the risk of substantial financial penalties, damage to their reputation, loss of customers and turnover and, if their online gaming licence is revoked, also the loss of their investments.”

  • The market entrance of small(er) providers is discussed in more detail following criticism from the Council of State. According to the Minister small providers can make use of white-label services. Reference is made to surrounding countries where ten large providers control more than 90% of the legal online gaming market. Based on that experience, the Minister assumes that granting licences to smaller providers is not decisive for achieving the channelization objective of 80%.
  • Some wording has been added concerning the placement of electronic means and the establishment thereof within the European Union (article 4.42 Decree):

    “The complex reality of online games of chance involves the use of electronic services from a wide range of suppliers. The technology and range of such services change rapidly and constantly. The configuration of virtually every gaming system is unique. The licensee must have a complete and up-to-date description of it in terms of the various components that make up the system (Article 4.41, subsection 2). In the interest of the responsible, reliable and verifiable organisation of the online games of chance, that system, supported electronically by the necessary hardware and software, must meet the requirements of Dutch regulations. It is conceivable that, in the framework of its risk-based supervision, the gaming authority will set priorities with respect to the licensee’s obligation to place the electronic means in the EU/EEA.”

The changes to both the articles and the explanatory memorandum of both the Decree and the Regulation are as noted limited. This is good news for operators that are busy in the preparation of their applications. We note that operators applying for a license before 15 April 2021, will also have some extra time to have the gaming system tested and certified. This should be done by 1 July 2021.

For questions, more information or assistance with an application for online gambling in the Netherlands, you can contact Machteld Robichon or Fransje Brouwer.


New European Directive gives teeth to consumer rights (and there are many…!)

The Netherlands leads the way in Europe with the possibilities of instituting class actions. In this manner, large-scale infringements of people’s and companies’ rights can be efficiently exposed.

This will now become possible in all European countries, at least for consumers. For a consumer alone, it is often too expensive or impractical to recover damages from a company, especially if that company is located abroad. It is much more efficient to join forces. There are various interest groups, such as the Consumers’ Association (‘de Consumentenbond’), the Dutch Home Owners’ Association (‘Vereniging Eigen Huis’) and the Automobile Association (‘ANWB’), which work to achieve this on a structural basis. If a mass damage case occurs, there are also ad hoc entities that achieves this. The ad hoc entities, which are constituted for the purpose of a specific action, are usually financed by a litigation financier.

The European Parliament gave its consent on 24 November 2020 to the ‘Directive on representative actions for the protection of the collective interests of consumers’. The Directive is part of the New Consumer Deal to strengthen European consumer rights and their enforcement. This includes rights that result from European regulations and directives in areas such as unfair commercial practices, tourism, product safety, energy, financial services, telecommunications, product liability and data protection.

From 24 December 2020, Member States have two years to adapt their legislation if they do not yet comply with the Directive. The new national provisions must then be applied from six months after that.

The Netherlands already has a developed, and recently with the introduction of the WAMCA, extensive legal system in this area and drastic changes do not seem necessary. What is new is that the Directive leaves almost no room for newcomers to this practice, the so-called ad hoc entities for cross-border claims. The Directive works with a list system for interest representatives who want to operate across borders and bring consumer claims. Member States have to draw up a publicly accessible list of representative organisations (‘qualified entities’) for cross-border claims. Member states would have to submit the list of qualified entities for cross-border claims to the European Commission. The competent authorities should meet the criteria laid down in the Directive. One of these criteria is that, in principle, the qualified entities for cross-border claims must prove that they have been publicly active in the area of protection of consumer interests for 12 months (Article 4(3)(a) of the Directive).

Regarding domestic claims, Member States are allowed to designate ad hoc representative entities for the pursuit of domestic claims (recital 28). These entities should be listed in national electronic databases which are publicly accessible through websites providing information about the designated competent entities (recital 63). The requirements for the appointment of representatives to pursue domestic claims are left to the discretion of Member States in accordance with national law. However, these requirements should be in line with the objectives of the Directive. Member States may choose to apply the requirements applicable to representatives in respect of cross-border claims also to representatives pursuing domestic claims.

Although the WAMCA now also sets stricter requirements for claim foundations, the prior designation of claim foundations as competent bodies and the inclusion of the claim foundations in a public database or a list system has not been a hard requirement to date.

Collective actions occur in almost all areas of law. The collective action team of bureau Brandeis has specialists in collective actions and settlements of mass damage cases. Examples are the diesel fraud cases and the case against Oracle and Salesforce for violation of privacy rules. bureau Brandeis often works together with leading interest groups and litigation financiers. The team also acts in mass damage cases that are primarily conducted in the United States, but which have offshoots in the Netherlands.

For questions or comments, please contact Frank Peters, Michelle Krekels and Louis Berger.


Markets in Crypto-Asset Regulation: what does increased regulation mean for the European Crypto market?

The European Commission (EC) has proposed new legislation on crypto assets. This is laid down in the draft Markets in Crypto-Assets (MiCA) Regulation and seeks to highly impact the crypto-asset industry. For every business involved in crypto-assets preparation is key.

Just the other day, Ursela von der Leyen, the EC’s President, stressed the importance of a ‘common approach with Member States on cryptocurrencies to ensure we understand how to make the most of the opportunities they create and address the new risks they may pose’. In line with this statement, the draft MiCA of 24 September 2020 sets out an ambitious EU-wide framework that regulates currently unregulated crypto-assets, including stablecoins, which are used as a means of exchange as they maintain a steady value.

The draft MiCA is seen as welcome regulation to the crypto market, which is often troubled by a reputation of being notoriously unregulated, legally opaque and is opposed to frequent encounters of Initial Coin Offering (ICO) scams. This proposal aims to counter many of those negative aspects surrounding crypto-assets, while also providing a more investor friendly framework. To anyone actively providing crypto-asset related services it is of great importance to prepare their businesses for the upcoming regulation.

Why is MiCA introduced?

The draft MiCA is part of the EC’s Digital Finance Package. This package carries a number of legislative proposals to shape the digital transformation of the EU financial sector. It aims to ensure that the EU financial services regulatory framework is suitable for innovating FinTech solutions and applications. One of the main examples is the Distributed Ledger Technology (DLT), a digital system that is shared, replicated and synchronized among the members of a decentralized network and records transactions such as the exchange of assets.

This proposal aspires to fulfill four objectives: (i) to ensure legal certainty by providing a sound legal framework for all crypto-assets, (ii) to support innovation and fair competition in the EU, (iii) to instil levels of consumer and investor protection and market integrity, and (iv) specifically addresses the so-called stablescoins, which might pose a threat to financial stability due to more potential global adoption.

Furthermore, this proposal is expected to provide a fully harmonised regime and are aligned with existing financial services regulatory framework. For instance, crypto-assets service providers will need to prepare to be authorized, comply with market abuse rules and provide a whitepaper similar to a prospectus.

To whom does MiCA apply?

This legislative proposal contains a definition of ‘Crypto-Asset Service Provider’ (CASP), which is derived from the definition of ‘Virtual Asset Service Providers’ of the Financial Actions Task Force’s (FATF), the global money laundering and terrorist financing watchdog. A CASP is any person whose occupation or business is to provide crypto-asset services to third parties on a professional basis. These crypto-asset services include, for example, providing advice on crypto-assets, custody and administration of crypto-assets on behalf of third parties, crypto-fiat exchanges, execution of orders for crypto-assets for third parties. Needless to say, the number of actors on the crypto market that will fall under the MiCA-regulation will be significant.

Additionally, the draft MiCA provides a framework for specific classes of crypto-assets that are currently unregulated. Moreover, this legislative proposal does not apply to crypto-assets that are already regulated as they qualify as, for instance, a financial instrument, e-money, deposits, structured deposits or securitisations.

The draft MiCA regulates three new categories of tokens and contains a catch-all definition:

Electronic money token, or ‘e-money token’, of which the main purpose is to be used as a means of exchange and that purports to maintain a stable value by referring to the value of fiat currency that is legal tender’. This type of crypto-asset is specifically aimed to regulate stablecoins backed by one fiat currency, such as USD Tether, USD Coin and (possibly) Facebook’s Libra.

Asset-referenced token, which is also a type of stablecoin, ‘purports to maintain a stable value by referring to the value of several fiat currencies that are legal tender, one or several commodities or one or several crypto-assets, or a combination of such assets’. In contrary to the e-money token, this type of crypto-asset could be backed by several underlying assets (other than one fiat currency), while still maintaining a stable value. Examples include DAI (Ether-backed) and Money on Chain (Bitcoin-backed).

Utility token, is a token that ‘is intended to provide digital access to a good or service, available on DLT, and is only accepted by the issuer of that token’. Utility tokens are often issued through an ICO to be used to access a good or service provided by the issuer. Popular examples of utility tokens are Golem (marketplace for computing power) and Basic Attention Token (advertising platform).

The catch-all-definition of ‘Crypto-asset’ is formulated as ‘a digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology’. This definition is broader than the FATF definition of virtual asset as it leaves out the specific functions of a crypto-asset. As a result, any other –perhaps future- crypto-asset is expected to fall under the MiCA regime.

What are the obligations under MiCA?

Similar to the existing prospectus obligations when issuing securities, crypto-assets must be issued to the public (i.a. investors, customers) together with a whitepaper that meets several requirements (e.g. description of the project and token). In the case of asset-referenced tokens and electronic money tokens, the whitepaper needs to be approved by a local regulatory body of the EU Member State. It is not yet certain which Dutch local regulatory body will be assigned these tasks.

The issuance of electronic money tokens are only allowed if the issuer is a recognised credit institution or electronic money institution under the Capital Requirements Directive or the Electronic Money Directive.

CASPs are only allowed to perform crypto-asset services if they are authorised by the relevant national competent authority after filing an application to that end. Consequently, if authorised, it will benefit from the EU Passport regime and will not need physical presence in another EU Member State when providing cross-border services.

Additionally, all crypto-assets that are admitted for trade on exchange platforms are subject to regulation to counter market abuse. These measures include the obligation to disclose insider information as soon as possible and the prohibition of market manipulation. This should safeguard the market integrity and therefore result in a higher level of confidence of investors.

When to be ready?

The aim is to have the entire Digital Finance Package, with MiCA included, into full effect by 2024, though it still needs approval of the European Council and the European Parliament.

As with any FinTech solution and the rise of new applications such as Decentralized Finance (DeFi), an experimental form of peer-to-peer finance, regulation will always be a few steps behind the actual state of play.

However, should your business be involved in crypto-assets, MiCA will definitely have impact. MiCA brings various compliance obligations and infringements of MiCA could mean significant fines.

Therefore, it may be useful to start preparations for the upcoming legislation. This could mean assessing whether your business will qualify as a CASP under MiCA and needs authorisation. Also, when your business is planning to issue asset-referenced tokens, the drafting of a whitepaper could come in handy.

In case you need any advice in doing so, or should you have any other questions concerning the draft MiCA, do not hesitate to contact us; bureau Brandeis – Financial Services Litigation.


Breaking News: Visa en Mastercard face billions of pounds damages claims in the UK

The so-called interchange fees set by Visa and Mastercard that have to paid by retailers on all card purchases are illegal, the UK Supreme Court said on Wednesday.[1] This means that Visa and Mastercard will now definitely be faced with potential billion pound follow-on damages claims from merchants.

Whenever a customer uses a credit/debit card to make a purchase in a store, the merchant´s bank account must pay a transaction fee to the card-issuing bank of the customer.  These fees are called multilateral interchange fees (MIF). The UK Supreme Court said Wednesday that the MIFs charged within the Visa and Mastercard payment card schemes are illegal.

This decision has major implications for Visa and Mastercard, because numerous damages claims have already been initiated by merchants in the UK and now it is clear that all these procedures can proceed to a trial to decide compensation. According to the lead counsel of J Sainsbury, the potential damages could amount to a billion pounds.

In July 2018, the high court decided already that the interchange fees of the companies were restricting competition and breached UK and European competition rules.[2] This decision has (for the most part) been confirmed by the decision of the Supreme Court.

The Supreme Court confirmed i.a. that Visa and Mastercard had to meet a more onerous evidential standard than that normally applicable in civil litigation with regard to proving that the interchange fee model should be exempt from European competition rules. One of the conditions in order to qualify for an exemption is that the efficiencies and benefits for the consumers (here: the merchants) outweigh the disadvantages they have to bear as a result of the restriction of competition. The Supreme Court said that the adverse effects should be outweighed by the benefits for (in this case) the merchants in so far that they would be fully compensated for the disadvantages. Visa and Mastercard did not succeed in proving that the merchants benefitted of the interchange fee model to that extent.

The procedures stem from a decision of the European Commission of 2007.[3] In that decision, the Commission found that the interchange fees of Mastercard were illegally high for 15 years. The Commission did however not decide whether the interchange fee as such would be illegal. The decision of the UK Supreme Court clarifies that this is the case.

We reported on these proceedings and their background in multiple editions of our Cartel Damages Litigation Quarterly Report in Q (2018-QI, Q3 and 4, and 2017-Q2, Q3 and Q4).

[1] UK Supreme Court 17 June 2020, [2020] UKSC 24.

[2]  Court of Appeal 4 July 2018, 2018 EWCA Civ 1536.

[3]  European Commission decision of 19 December 2007, case COMP/34.579 (Mastercard).


Update: online gambling in the Netherlands: timing opening and other updates

The measures taken in connection with COVID-19 can be felt in every sector, including games of chance. Fortunately, public life is gradually starting up again and landbased casino’s are expected to reopen on 1 July 2020. Also the process leading up to the entry into force of the Dutch Remote Gambling Act (Wet kansspelen op afstand) is moving ahead.

For instance, last week the Permanent Committee for Justice and Security of the Dutch Lower House held a meeting about among others the draft Decree Remote Gambling (Besluit kansspelen op afstand, “Decree”). It was decided that as a next step, the Decree will be scheduled for a plenary debate. The debate is currently scheduled for next week but the date may shift. We expect that it will take place before the summer recess starting on 3 July 2020.If everything goes as planned, the step thereafter will be that the Decree will be sent to both the Dutch Council of State (Raad van State) for advice and the European Commission, in order to be notified. This brings the Netherlands one step closer to the opening of the market.

No use of existing database

 One important issue that came up recently in responses from the Minister for Legal Protection is the introduction of a prohibition to make use of the customer database that online operators built up before becoming licensed in the Netherlands. This prohibition shall be included in the license term. The Minister stated the following:

“A provider who offered remote games of chance in the Netherlands without a license prior to the entry into force of the Koa Act, and who is nevertheless in possession of an online gaming license after an intensive reliability assessment by the Gaming Authority, may not use his database of players in the Netherlands that he has built up in the previous period … .”

The reliability of applicants that already have been active on the Dutch market, will be assessed by the Netherlands Gaming Authority (Kansspelautoriteit; “KSA”) on the basis of the compliance with the so called ‘cooling off-criteria’. Earlier this year the Minister augmented the cooling off period from 2 to 2,5 years prior to the date on which an application is filed by an operator:

“In the transition to the necessary regulation of remote games of chance, the Gaming Authority, in the interests of a prosperous channelling of this reliability assessment, temporarily assigns less weight to any previously illegal offer, provided the provider concerned has refrained from offering online games of chance specifically aimed at Dutch consumers in a period of at least two and a half years prior to the licence application and has demonstrably verified the age of players at the time of registration as of 1 January 2020.”

 Advertising restrictions: role models

 The Minister also elaborated on some advertising restrictions. The use of role models that have a substantial reach among minors and young adults (below 25) shall be prohibited. The Minister specified that role models will have to scrutinized in view of their reach on among others social media, in series and movies or music. He also explained that sponsorship of youth teams and logos of licence holders on products worn by children is covered by the prohibition to target minors.

Timing and next steps: market opening in 2021

  • The chairman of the KSA announced last week that the KSA will disclose more information about the connection procedure between operator’s customer databases and the Central Register Exclusion Games of Chance (Centraal Register Uitsluiting Kansspelen; “CRUKS”) by mid-June. also indicated that although operators are responsible for the implementation of CRUKS, the KSA is committed to facilitate this process. For instance, operators will be able to ask for technical guidance from the KSA, which will then be provided through interactive sessions.
  • It is also expected that the KSA will publish the draft policy rules regarding the reliability of the applicant and the draft application form this summer.
  • If all these steps are taken in time, theoretically it is still possible that the Remote Gambling Act will enter into force on 1 January 2021 and that the market will open on 1 July 2021. However, given the tight planning, a delay of one or two months seems well possible. If this is the case, the start of the license application process will accordingly shift from 1 January 2021 to a few months later, the same applies to the market opening.

Licenses and what preparation 

Operators that did not offer online gambling to the Dutch market without a license, shall be able to apply for a license as soon as the application process opens in 2021. Unlicensed operators that were already active have to comply as noted earlier with the cooling off criteria and are expected to file their applications as of 6 months later.  It is expected that a large amount of operators will apply for a license when the application procedure starts. This is also the expectation for operators that have to comply with the cooling off-criteria and that can first apply 6 months later. In total, the KSA is expecting to grant around 90 licenses.

As the requirements for the license application are for the majority available, see also our previous blog, and as these are quite extensive, operators interested in the Dutch market are recommended to start preparing their applications!

For questions, more information or assistance with an application for online gambling in the Netherlands, you can contact Machteld Robichon or Fransje Brouwer.


bureau Brandeis climbs in Legal500-rankings

In its latest publication Legal500, one of the most prestigious legal directories worldwide, has recognised the growing success of bureau Brandeis as one of the leading litigation boutique firms in the Netherlands.

bureau Brandeis comes in highly recommended for Dispute Resolution (Commercial Litigation), Privacy and data protection, Media & entertainment, Information Technology, Intellectual Property, Telecoms and EU & Competition

Of all Dutch litigation firms we are proud to have the highest number of recommended partners and senior counsels: Christiaan Alberdingk Thijm (Media, Telecoms, Intellectual Property and Information Technology),  Louis Berger (Commercial Litigation), Hans Bousie (EU Competition and Media/Entertainment), Bas Braeken (EU & Competition, Telecoms and Commercial Litigation), Frank Peters (Commercial Litigation), Machteld Robichon (Media/Entertainment, Telecoms and Information Technology), Jozua van der Beek (Commercial Litigation) and Vita Zwaan (Privacy and Data Protection).

We are especially excited to see a number of our young stars Caroline de Vries, Syb Terpstra, Sophie van Everdingen and Sam van Velze entering the rankings.

bureau Brandeis is grateful to its clients and partnering law firms for trusting us for their most important matters. Our success is their success.



At times of need, bureau Brandeis is always there for its clients. That is why we have set up a special coronavirus helpdesk to answer any questions you may have.

The spread of the coronavirus affects all companies and industries. This has major
implications and raises all kinds of legal questions, such as:

  • What to do if your customer or client is on the verge of bankruptcy?
  • Is the agreement your company depends on enforceable (whether or not in preliminary relief proceedings by claiming performance of the contractual obligations)?
  • Conversely, what can you do if you want to defend yourself against a possible claim for performance that would put your company in dire straits?
  • Do I have to treat all my creditors equally, now that things are a little tighter financially?
  • Etc.

Many legal questions about the consequences of the coronavirus have already been answered (in Dutch) by bureau Brandeis in this blog post.

Those of you who do not speak Dutch and for other relevant questions, please contact Hans Bousie or Stefan Campmans at our corona helpdesk either by phone or email.

And if you have any questions that are not our area of expertise, such as tax or labour law, we are happy to refer you to colleagues with whom we work closely, so we can solve your problem together.


Undisrupted service during coronacrisis

bureau Brandeis closely follows the developments concerning the coronavirus. In light of the Dutch government’s recommendation to work from home where possible, we have implemented a remote working plan for our attorneys and staff. The firm has an excellent IT infrastructure and we do not expect any delay in offering our services to you.
Meetings are being rescheduled to telephone or video conference as much as possible. We have cancelled our in-house seminars and limited our external visits to Court appearances until the end of March. We will continue to monitor the directives of the authorities and will take additional measures when necessary.
The coronavirus has a big impact on the businesses of our clients. We are grateful that many of them have reached out for our guidance on the issue. Please do not hesitate to contact us should you require legal advice on the coronavirus or any other matter. We are committed to continue to assist our clients during these challenging times.
Team bureau Brandeis

Online gambling in The Netherlands: Market about to open

After many years of waiting, the market for online gambling in The Netherlands will finally open. As things currently stand, it will be possible for providers to request a license as of 1 January 2021.

The principle underlying the regulation of online gambling is to guarantee a safe environment for players to participate in online gambling, where gambling addiction and (gambling-related) crime is prevented. In this respect, the Dutch government has a ‘channeling’ objective of 80%, meaning that it aims for 80% of the people that participate in online gambling to do so with a legal and therefore reliable provider. By opening the market, the government expects that it will become easier to supervise the online gambling market. This supervision will be carried out by the Dutch regulator in the field of (online) gambling, the Dutch Gaming Authority (Kansspelautoriteit; “DGA”).

Applications for licenses will have to be submitted to the DGA for an amount of € 45.000 and will only be granted when the applicant meets a set of strict legal requirements set forth in the Remote Gambling Act (Wet kansspelen op afstand; “RGA”), the Decree Remote Gambling (Besluit kansspelen op afstand; “DRG”) and the Ministerial Decree Remote Gambling (Ministeriële regeling kansspelen op afstand; “MDRG”). Main features of these requirements are the reliability of the applicant, responsible play and crime prevention.

Reliability of the applicant

The reliability of the applicant, including its directors, policy makers and shareholders, must be beyond any doubt. In this respect, the applicant must provide information regarding (among others) criminal incidents, financing and an overview of affiliated companies.

The reliability of applicants that already have been active in the market, will be assessed by the DGA on the basis of the compliance with the so called ‘cooling off-criteria’ for a period of currently 2 years prior to the date on which the application is filed.

The cooling-off criteria are:

  • no use of a .nl-extension;
  • no use of the Dutch language;
  • no advertising on television, radio or printed media, targeting the Dutch market;
  • no use of domain names containing typical wordings referring to The Netherlands in combination with gambling references;
  • no references from which a focus on The Netherlands can be derived, i.e. via wordings, symbols or images;
  • no use of payment methods that are used exclusively or mostly by Dutch people, such as iDEAL;
  • not allowing minors (< 18) to participate in online gambling.

Also, the applicant is required to have a policy in place to guarantee the continuity of the reliability.

Responsible play

The applicant must also have policies and measures in place that guarantee that minors and other vulnerable groups are protected against the risks of online gambling.

As for minors (< 18), this means that they have to be excluded from participation in online gambling in any case. As for youngsters (18 – 24), this means that they cannot be a target of marketing- and advertising activities. In line with this, it is also prohibited to use the services of individual professional sportsmen. Advertising that is permitted must be in accordance with the risk analysis that the license holder is required to make of its offer.

As for adults, there is (among others) a Central Register Exclusion Games of Chance (Centraal Register Uitsluiting Kansspelen; “CRUKS”). As the name suggests,  this register contains the names of persons that are (temporarily) excluded from online gambling, for instance due to excessive participation. Such registration can be both voluntary and involuntary. The tender for CRUKS was published last week. The DGA developed and tested the application in-house. The tender relates to the hosting, functional and technical application management and further future development of the application.

Furthermore, in order to prevent online gambling from even becoming excessive and eventually turn into gambling addiction, the license holder must provide for adequate trainings for its personnel.

Crime prevention

In order to provide for a crime free-environment for online gambling, applicants must demonstrate compliance with the provisions of the Prevention of Money Laundering and Terrorism Finance Act (Wet ter voorkoming van witwassen en financieren van terrorisme) and the Sanctions Act (Sanctiewet). The first act contains provisions on risk management, client investigation, reporting of unusual transactions, retention of supporting documents and training. In view of compliance with the latter, relevant are whether international measures were issued in response to a violation or threat to international peace and security.

Supervision by the DGA

When applicants are granted a license, they have to report frequently to the DGA in order for the DGA to exercise its supervisory powers. In this respect, license holders are also required to have a Control database (Controledatabank; “CDB”) in place that is accessible by the DGA. Via the Control database, the DGA can view digital data from license holders and verify whether they comply with certain license conditions.

Gambling tax is due on prizes that exceed the (gross) amount of €449 and must be paid by the license holder. The tax rate is 29%.

What’s next?

At this moment, the responses to the lower regulation that was published for consultation are being processed and details in the legal framework are specified. For instance, the amended Decree is expected this week. The technical requirements regarding CRUKS and the CDB are expected before the start of summer. When these (draft) requirements are published, a response hereto can be submitted via a consultation application form. However, with the information currently available it is well possible to already start preparing for submitting an application. As the saying goes, well begun is half done.


For questions, more information or assistance with (the preparation for) an application for online gambling in the Netherlands, please contact Machteld Robichon or Fransje Brouwer.


Major revision of the regime for collective actions in the Netherlands


The Dutch regime of collective actions has been thoroughly revised. This revision has created new opportunities for damages actions, requiring claimants, funders and other players in this field to conduct a comprehensive assessment of methods by which they can advance their case.

On March 19, 2019, the amendment of the Act on the Resolution of Mass Claims in Collective Action (‘Wet Afwikkeling Massaschade in Collectieve Actie’) (‘’WAMCA’’) was approved by the Senate and has come into force and effect on January 1, 2020. This amendment introduces the possibility to claim damages in a collective action while at the same time adding stricter requirements for claim vehicles to have standing, as well as changing the international aspects of future collective actions. Furthermore, courts will appoint a quasi-lead plaintiff (“Exclusive Representative“) when there are competing actions. This will be further elaborated upon below, and clarified in a schematic overview.

The possibility to claim damages

In the Netherlands, a claim vehicle (foundation or association) can represent the interests of injured parties and initiate a claim against the responsible party before the Dutch court. Under the old regime, the claim vehicle could not claim collective damages on behalf of the injured parties as it could only seek a declaratory judgment regarding liability. Each injured party had to bring its own claim for compensation in follow on litigation, or settle on a collective or individual basis.

Since January 1, 2020, it is allowed to also claim damages on behalf of the injured parties. It is expected that this will fill in a significant void in the old regime.

Standing of the claim vehicle

The WAMCA adds stricter requirements regarding the standing of a claim vehicle (article 3:305a of the Dutch Civil Code) in terms of governance, objective, representation and funding. Although many of these aspects were adhered to by professional players of good repute on a (semi) voluntary basis anyway, as they tended to apply the Dutch Claim Code, it is now mandatory to have (i) a non-commercial objective, (ii) a supervisory board, (iii) a mechanism for decision-making by the persons whose interests are represented, (iv) sufficient economic means for the costs of the class action and (v) sufficient experience and expertise for running a class action.

The scope of the collective action

Until now, Dutch courts have proved to be welcoming of collective actions with international aspects. Under the WAMCA, for the Dutch courts to have jurisdiction, it is required for the case to have a sufficiently close connection with the Dutch jurisdiction. A sufficiently close relationship exists if (i) the majority of persons whose interests are at stake have their habitual residence in the Netherlands; or (ii) the party against whom the legal action is directed is domiciled in the Netherlands and additional circumstances suggest a sufficient relationship with the Netherlands; or (iii) the event(s) to which the legal action relates took place in the Netherlands.

The appointment of an “Exclusive Representative”

Before a claim vehicle can start a collective action under the WAMCA, it has to make a reasonable attempt to settle the case with the counterparty. A letter that gives the counterparty two weeks to respond is sufficient in this case. After two weeks, the claim vehicle is allowed to submit a writ for a class action.

Under the WAMCA the claim vehicle has to register its collective action in a public register after the submission of the writ, within two days after the filing of the action (‘Centraal register voor collectieve vorderingen’). The entry in the registry triggers a three-month period, during which other claim vehicles can file alternative (competing) collective actions that are based on the same event(s). This period can be extended by the court with another three months.

If several claim vehicles bring a collective action addressing the same events, these collective actions will be consolidated. If the court grants the claim vehicles that brought a collective action standing, it will appoint one of them as the Exclusive Representative to represent the interests of the class and of the other claim vehicles. The Exclusive Representative is chosen by the court from the central register based on all facts and circumstances, indicating that such a party is the most appropriate and well equipped to have that role. This is likely to have as an effect that less professional parties, and ad hoc commercial initiatives, may find it harder to enter the market of collective actions.

Although the other claim vehicles remain parties to the proceedings, the court will decide whether to allow each claim vehicle to file their own pleadings. This resembles somewhat the lead plaintiff system in the United States.

Opt-out and opt-in possibilities

Under the old regime, there was only one opt-out moment: after a settlement agreement is reached and declared binding by the court upon the class. Under the WAMCA there are two opt-out moments. The first one is after the appointment of the Exclusive Representative and the decision of the court on the scope of the action and the definition of the “class”. The second opt-out option is after a settlement agreement is reached between parties and declared binding by the court.

Under the WAMCA, a class settlement is not required, but attempting to reach one is an integral part of the proceedings.

A major change is that foreign injured parties can only be represented in the proceedings when they opt-in under the WAMCA – under the old regime this was on an opt-out basis. This may impact the size of the cases to be brought before the Dutch courts.

In conclusion, under the WAMCA a court decision granting or dismissing the collective action is binding on all members of the class who reside in the Netherlands and did not use their right to “opt out” of the action. The same applies to members residing abroad, who joined the collective action by opting in.

Settlement agreement or judgement

The collective action ends with the approval by the court of a settlement concluded by the parties or with the judgement of the court on the claim of the claimants. The judgement of the court can either be a rejection or granting of the claim(s). The settlement agreement approved by the court or the giving judgement by the court are also recorded in the public register (‘Centraal register voor collectieve vorderingen’).

Transitional law

The WAMCA applies to collective actions for damages initiated on or after the date of its entry into force for events that took place on or after 15 November 2016. The old regime will apply to actions that relate to events that took place before 15 November 2016.


bureau Brandeis’ collective action team boasts specialists in collective actions and mass claims settlements and often works with interest groups and class action claim funders. Our team is also active in class actions which are mainly based in the US and have their effects in the Netherlands as well.

For more information please contact Michelle Krekels.



European Court: reselling e-books violates copyright law

Is there such a thing as a second-hand e-book? Put differently: may an e-book be resold after the first purchase? The Grand Chamber of the Court of Justice of the European Union (CJEU) answered this question in the negative. On 19 December 2019, the CJEU declared that the act of offering an e-book for resale is contrary to copyright law.

The case

The case was between the Dutch Publishers Association and Tom Kabinet. Tom Kabinet offers a platform through which users of Tom’s “reading club” can download and reproduce “second-hand” e-books. The publishers, together with a number of authors, claimed that Tom Kabinet’s activities violate their copyright, more specifically that Tom Kabinet is making an unauthorized communication of these e-books to the public. Tom Kabinet, on the other hand, argued that its activities were covered by the distribution right and subject to the so-called “exhaustion” doctrine. This would mean than an e-book, once it has been legally sold for the first time, can be further distributed (and sold) without the rights holder’s authorization. Tom Kabinet based its argument on an earlier judgment of the CJEU, in the so-called Usesoft case.

The judgment

The CJEU sided with the publishers in deciding that Tom Kabinet is making available e-books to the public. The judgment also follows the opinion of Advocate-General Szpunar, delivered on 10 September 2019.

According to the CJEU, the provision of e-books through a website by online downloads is an act covered by the right of communication to the public (article 3 InfoSoc Directive), not the distribution right (article 4 InfoSoc Directive). This is supported by the legislative history to the InfoSoc Directive, in which it is emphasized that “interactive on-demand transmissions” were intended to fall under the exclusive right of communication to the public (point 44).

No digital exhaustion

Since the exhaustion doctrine only applies to the distribution right, and not the right of communication to the public, it does not apply in this case. According to the CJEU, the EU legislature has intended that the rule of exhaustion be reserved for the distribution of tangible objects, such as physical books on a material medium. Under the InfoSoc Directive, there is no such thing as “digital exhaustion”.


Earlier, in 2012, the CJEU found in the UsedSoft case that it is possible to resell copies of computer programs downloaded from the internet under the Software Directive. That ruling raised the question whether the same consequences could extend to other subject matter than software as well. In the Tom Kabinet judgment, the CJEU rules that this is not the case. E-books are not computer programs and are therefore not covered by the Software Directive, which counts as a lex specialis (points 54-54), but by the InfoSoc Directive. Moreover, it cannot be said that books and e-books are economically and functionally identical, as was the case in UsedSoft. Indeed, the CJEU points out that the consequences of a second hand market for e-books would severely affect right holders. Unlike physical books, e-books do not deteriorate with use over time. A “second-hand” market would therefore be very detrimental to the “first-hand market”.

Making available to the public

Contrary to the referring national Court, the CJEU explains in detail why Tom Kabinet performs an “act of communication”, more specifically an act of “making available” e-books to the public in such a way that members of the public may access them from a place and at a time individually chosen by them. According to the CJEU, the decisive act is the offering of a work on a publicly available website, which act precedes the stage of its actual on-demand transmission (point 64).

New public

The CJEU also rules that Tom Kabinet offers the e-books to the “public”, emphasizing that account needs to be taken not only of the number of persons able to access the same work at the same time, but also of how many of them may access it in succession (point 68). To conclude, Tom Kabinet offers the e-books to a “new” public, since the making available of e-books is generally accompanied by a user license stipulating that the user may only read the e-book from his or her own equipment (point 70-71).

Music and film

The judgment is of great importance to the e-book market, but also effects other types of work, such as digital music and films. It seems evident from the ruling that the reselling of digital music or digital films is also contrary to copyright law.


bureau Brandeis (Christiaan Alberdingk Thijm and Caroline de Vries) handled the case for the Dutch Publishers Association. After five long years of litigation, the publishers and authors now finally have clarity. It was an uphill battle in the Dutch courts, as they repeatedly were unwilling to confirm that Tom Kabinet´s conduct amounted to an infringement of the right of communication to the public. The referring Court, the District Court of The Hague, even refused to formulate a preliminary question regarding the scope of this right, despite an unanimous request made by both parties to do so. Fortunately, in its judgment the CJEU considers that in order to give a useful answer to the preliminary questions of the Dutch Court, the right of communication to the public must be taken into account.


Financial Services Litigation Update

In our latest Financial Services Litigation Update we discuss recent judgments regarding the contracting obligation for banks when there is a risk of money laundering, the use of enforcement requests against foreign competitors and the impact of foreign regulatory enforcement measures on a fit and proper test for financial sector directors.

If you would like to discuss these or other financial law related topics, please feel free to contact us: bureau Brandeis – Financial Services Litigation.

Special duty of care of financial services providers and the risk of money laundering

Banks struggle with controlling the risk of money laundering. In this case, the court emphasizes that it is in itself perfectly justified that a bank imposes strict requirements on new clients within the framework of (the integrity requirements of) the Financial Supervision Act (Wft).

Nevertheless, the court finds that in this case the fight against money laundering should not preclude a special purpose entity that will be involved in (the legal production of) cannabis to apply for a bank account.

Although the bank claims that it has freedom of contract, the court considers that for commercial banks this does not exist to its fullest extent. After all, having a bank account is necessary to be able to participate in social and economic life.

According to the court, when it comes to being able to participate in payment transactions one should not make a distinction between private individuals and business customers. Both are in principle entitled to a bank account and, as a result, banks in principle have an obligation to contract all.

In addition, this special duty of care that banks have from their social function applies both to existing clients and to third parties, whereby the scope of the duty of care depends on the circumstances of the case.

The special feature of this case is that the claimant is a special purpose entity that is preparing to be admitted as a grower in the context of the “Experiment of the closed cannabis chain” on which a legislative proposal is pending.

Now that the aim of this project is precisely to reduce the illegal trade in cannabis by legally producing this substance and thus (indirectly) to prevent illegal activities and the risk of money laundering, the court allows the claim. The bank may, however, impose conditions on the use of the business account.

Court of Amsterdam 04-11-2019


Prosecuting director as fellow perpetrator or as de facto manager of alleged violation?

 The Netherlands Authority for the Financial Markets (AFM) has imposed an order subject to a penalty to a director of a group of entities that was offering securities for participation in its bond funds. The director allegedly acted as fellow perpetrator of alleged unfair commercial practices.

On the basis of the investment brochure, which is in the possession of the AFM, it is believed that essential information to make an informed decision about the investment is withheld from potential investors.

The AFM’s claim that the director acted as a fellow perpetrator is based on the fact that, among other things, the director set up and arranged the entities of the group, initiated the issue of the securities and is (indirectly) the director under the articles of association and sole depositary receipt holder /shareholder and thus cooperates closely and consciously with the group.

It is argued however that the director cannot be regarded as a fellow perpetrator of the alleged violation. The judge in preliminary relief proceedings agrees with this.

According to the preliminary relief judge, the AFM wrongly classified the director as fellow perpetrator of the alleged violation. On this ground, it is not allowed to impose an order subject to a penalty on him and to publish that penalty.

It follows from settled case law that it must be demonstrated beyond reasonable doubt that the cooperation between (legal) persons who cannot be equated has been so conscious and close, that they may be considered as fellow perpetrators.

In this case however, the behavior occurs within the framework of the normal business conduct of the entities and can be attributed to those entities. The AFM wrongfully equates the entities and the director. The court considers that the director may have had actual control of the alleged violation but cannot be referred to as a fellow perpetrator.

Now that the number of cases in which financial regulators are holding individual officers accountable for company violations, it is essential to always carefully examine the precise relationships and their qualifications, as this case shows.

Court of Rotterdam 12-07-2019


Integrity screening of policymakers includes measures imposed by foreign regulatory authorities

 This case concerns a rejection of an application for a license to manage an investment institution, because the license requirements are not met. According to AFM, among other things, the integrity of the proposed policymakers is not beyond doubt.

The integrity of a policymaker is determined by the AFM on the basis of the policymaker’s intentions, actions and antecedents. The AFM will at any rate take into account supervisory antecedents and other facts and circumstances that indicate involvement in conduct in respect of which rules have been laid down in Dutch or foreign financial supervision legislation, if such  conduct may be relevant for the integrity screening.

A number of measures were imposed on the intended policymakers by the Luxembourg financial regulator in their capacity as policymakers of a Luxembourg investment manager. The measures were imposed because of the late submission of annual reports of this Luxembourg manager, belonging to the group and supervised there, and of funds managed by it. In addition, a measure was imposed on the manager for launching a new sub-fund without depositing its assets and not informing the Luxembourg regulator.

According to the Trade and Industry Appeals Tribunal (the “CBb”), the AFM correctly classified these measures as supervisory antecedents, because they were imposed for non-compliance with financial legislation similar to that in the Netherlands. The CBb ignores the argument that considering the Luxembourg measures as antecedents would unreasonably stretch the envisaged effects of the Luxembourg measures.

The CBb is particularly concerned about the fact that the intended policymakers did not report the antecedents. The Luxembourg measures were not reported on the relevant part of the integrity screening form, nor as ‘other relevant circumstances’. Also after questions from the AFM, the Luxembourg measures  were not reported as antecedents. The failure to report was in itself also rightly classified as a supervisory antecedent, according to the CBb.

This case demonstrates the importance of conduct prior to the fit and proper test as well as the transparency that targeted policymakers exercise during the review process. The financial regulator is allowed to consider both aspects in its assessment.

Trade and Industry Appeals Tribunal 15-10-2019


Can a market party request regulatory enforcement against a competitor?

An Irish investment firm asked the AFM to take enforcement action against a Dutch investment firm for alleged violation of the statutory bonus cap rules.

The AFM did not respond to the enforcement request. According to the regulator, the investment firm has insufficiently demonstrated the impact on its competitive position and therefore there is an insufficient interest in a decision on its enforcement request.

In line with established case law, the Rotterdam Court considers that the Irish investment firm can only be considered as an interested party in the enforcement request, if enforcement action against the other investment firm can actually have an impact on its competitive position.

Both investment firms operate within the same market segment and coverage area. They trade for their own account, and are both market makers in largely the same exchange traded funds (ETFs) on the same stock markets and can therefore in principle be regarded as competitors.

Unlike the AFM, the court finds that it has become sufficiently plausible that if the AFM does not enforcement action, the Dutch investment firm will be in a more competitive position.

This is because in terms of remuneration policy the Dutch firm can be considered more attractive for (current and future) staff and it can also manage its costs more flexible through more variable remuneration. In addition, the Irish investment firm states that there are only minimal differences between its bid and offer prices and those of the Dutch investment firm, resulting in the deal going to the Dutch firm with the Irish investment firm having the second best price – but not getting the deal. The AFM has not rebutted this claim.

According to the court, the AFM cannot require the Irish investment firm to submit extensive economic analyses of the impact of regulatory  enforcement on its turnover in relation to that of the other investment firm. The AFM wrongly rejected the Irish investment firm’s request and is ordered by the court to decide on the firm’s objection to rejection of the request for enforcement.

This case shows that, with the correct justification, parties in a cross-border market can submit enforcement requests in other countries.

Court of Rotterdam 19-09-2019



Financial Services Litigation Update

This update highlights some recent decisions from the Dutch courts relating to banking relationships, regulatory obligations and transparency in the financial services sector. Contact us if you have any questions or find out more about bureau Brandeis’ Financial Services Litigation here.

No termination of banking relationship without concrete evidence of AML breach
In this case a bank had blocked a client’s bank accounts based on the Money Laundering and Terrorist Financing Prevention Act (Wet ter voorkoming van witwassen en financiering van terrorisme; Wwft) for not providing sufficient information on its suppliers and customers, whilst the account gave signs of involvement in fraud and money laundering. The bank’s client had moved from trading used car parts to selling small electronics and claimed continuation of the account agreement.

The preliminary relief judge of the Amsterdam Court ordered the bank to continue the relationship in the usual manner. According to the court, a bank cannot terminate its relationship with a client and block its accounts if its Anti-Money Laundering (AML) concerns are not sufficiently demonstrated in the specific case.

The court held that the standards of reasonableness and fairness imply that termination of a banking relationship can only be based on sufficiently compelling grounds in the given circumstances. This requires due consideration of all interests.

In this context, the court attached importance to the bank’s duty of care and the access of account holders to payment transactions. At the same time, it also considered important that account holders enable the bank to comply with its obligations towards regulators and to protect the reputation of the bank and the integrity of the financial system.

On the basis of AML legislation and the related obligation to investigate, a bank cannot require evidence excluding involvement of the client’s customers and suppliers in money laundering. The bank’s AML-obligation to investigate, regards the client and who is behind the client. It does not regard who is behind the client’s customers, said the court.

The full decision can be read here in Dutch: Rechtbank Amsterdam 30 april 2019, ECLI:NL:RBAMS:2019:3157.

Is requesting enforcement a successful way to elicit an administrative ruling?
Anyone can request a regulator to take enforcement measures against a market party in case of non-compliance with laws and regulations. Special about this case is that the enforcement request at hand was submitted by a market party in relation to conduct concerning its own product. This market party was the holder of a portfolio of credit agreements, for which a regulated entity acted as its portfolio manager.

The purpose of requesting enforcement against oneself, was to obtain a judgment from the court on certain policy amendments the AFM had requested from the manager. The AFM sent a letter to the manager in which it requested these amendments, whilst the amendments affected the market party.

The market party itself was not a licensed entity, but an affiliated undertaking of the portfolio manager which did hold an AFM license.

In the court proceedings, the AFM took the position that it does not have power to take enforcement action against the – unlicensed – market party. The court agreed with the AFM and considered that market conduct supervision of affiliated undertakings takes place through the central regulated legal entity. The latter is supposed to exercise control over the affiliated entities’ compliance with the rules and legislation.

In addition, the market party attempted to object and appeal against the AFM’s letter. The court confirmed however that no appeal lies against the AFM’s letter to the portfolio manager. The reason for this was that the letter was just a confirmation of what was discussed, and not a definitive administrative ruling on applicability of a legal provision.

The full decision can be read here in Dutch: Rechtbank Rotterdam 23 april 2019, ECLI:NL:RBROT:2019:3688.

Limited transparency and public access to information at financial regulators
Under the Government Information Public Access Act (Wet openbaarheid van bestuur), anyone can request a government body for information about an administrative matter. The Dutch Central Bank (De Nederlandsche Bank, ‘DNB) and its regulatory counterpart the Netherlands Authority for the Financial Markter (Autoriteit Financiële Markten) however, are in principle excluded from the applicability of this Act.

The key question in this case was whether or not this exception for the financial regulators merely regards confidential information relating to supervision of individual financial institutions. This in view of the duty of secrecy as laid down in the Netherlands Financial Supervision Act with regard to confidential information obtained pursuant to supervisory powers.

According to the applicant in question, information on the financing of, in this case, DNB and the funding of financial supervision does not fall under the exception and should be made public.

The Council of State (Raad van State), the highest administrative court for these matters, found that the exception makes no distinction between types of documents. Therefore all documents following from and relating to supervision of financial institutions are excluded from requests to disclose such information.

Also in respect of the requested documents in this case, the Government Information Public Access Act does not apply to DNB. The fact that DNB did provide some information on the topic without being obliged to do so was not considered arbitrary.

The full decision can be read here in Dutch: Afdeling Bestuursrechtspraak van de Raad van State, 17 april 2019, ECLI:NL:RVS:2019:1236

First compulsory transfer of shares following transfer plan of DNB upheld
This case regards the first compulsory transfer of shares of banks or insurers to a new owner ordered by the Dutch Central Bank (De Nederlandsche Bank, ‘DNB) and discusses the intensity of the court’s assessment thereof. This specific case regards the transfer of assets in a life insurance company that created quite some media attention.

Given developments potentially jeopardizing the assets and solvency of the life insurer, financial regulator DNB intervened and prepared a plan for transfer of the shares in the life insurer, which instrument DNB has to execute the compulsory transfer of an ailing bank or insurer. In the eyes of DNB, the insurer’s board and shareholders failed to take sufficient measures to strengthen the capital position of the life insurer. DNB ultimately requested the Amsterdam Court to approve its transfer plan and pronounce the transfer regulations.

The courts’ decision was only subject to appeal in cassation with the Supreme Court of the Netherlands.

It has confirmed that the court can approve a transfer plan if it summarily appears that there are dangerous developments regarding the assets, solvency, liquidity or technical facilities.

Although there has been a change in legal terminology to bring the relevant criterion of the Financial Supervision Act (Wet op het financieel toezicht, ‘Wft’) in line with the Bankruptcy Act (Faillissementswet, ‘Fw’), this did not change the extent of the review says the Supreme Court. The court still is to perform a cautious review of such situation.

In the Supreme Court’s view this is exactly what happened. The court examined the substantive arguments of both parties and did not perform a more cautious review than the law requires. As a result it’s decision is upheld. The full decision can be read here in Dutch: Hoge Raad 17 mei 2019 ECLI:NL:HR:2019:746


Financial Services Litigation Update

This update highlights some recent decisions from the Dutch courts relating to regulatory investigations and enforcement measures in the financial services sector which we think are worth sharing. Contact us if you have any questions or find out more about bureau Brandeis’ Financial Services Litigation here.

AFM fine annulled due to a violation of the principle of equality

In this case, the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten, “AFM”) concluded that an investment company (beleggingsonderneming) acted in breach of the Dutch Financial Supervision Act (Wet op het financieel Toezicht, “Wft”) and underlying regulations. In addition to imposing measures against the investment company, the AFM decided to impose measures against two statutory directors and one employee who was also (indirect) shareholder for having actual control (feitelijk leidinggeven) of the company’s prohibited conduct.

The AFM imposed a heavier measure on the employee (i.e. an administrative fine) than it did on the two statutory directors (i.e. an instructive letter, including a warning). After an unsuccessful objection, the employee appealed with the Rotterdam Court that decided that a different role for the persons involved can in principle justify unequal enforcement by the AFM, for example, in terms of the amount of a fine.

In this case, the difference in measures imposed by the AFM was not proportionate in relation to the difference in culpability and financial interest of the alleged offenders. The court considered that the AFM did not present sufficient relevant circumstances to justify imposing very different measures. It only claimed that the acts of the employee were more seriously culpable than those of the statutory directors, because of an alleged financial benefit for the employee. According to the court, this factor was insufficient to justify imposing very different measures, especially given that an administrative fine is more onerous because it is in principle published – which has a defamatory effect.

The fact that the employee might have had financial benefit of the violation could have resulted in a difference in fines, but not in the huge difference in measures that the AFM made. In conclusion, the court held the appeal well-founded and annulled the challenged decision of the AFM due to a breach of the principle of equality (gelijkheidsbeginsel).

The full decision can be read here in Dutch:

Rb. Rotterdam 13 juni 2018, ECLI:NL:RBROT:2018:6261.


Investigation by supervisor? Your employees won’t be cautioned

A bank located and licensed in Malta that is allowed to offer consumer credit in its home state, completed a notification procedure to also offer consumer credit from Malta to the Netherlands based on the so-called European passport for banks. The AFM however found that the bank was offering consumer credit from a branch office (bijkantoor) in the Netherlands, for which it had not followed the correct notification procedure.

The AFM therefore imposed an administrative fine of EUR 1,7 million on the bank for offering consumer credit without the required license. The bank argued in these interim relief proceedings that the AFM had no grounds thereto and that the intended publication of the fine should be suspended. The court however, saw no reason to suspend the AFM’s decision to impose a fine or suspend or alter the publication thereof.

Interesting about this decision is that a significant part of the evidence on the basis of which the AFM imposed a fine is derived from statements of an employee of the bank who was heard by the AFM during the investigation. The bank argued that the AFM could not use these statements as evidence, because the AFM did not read the employee its rights.

Based on recent decisions of the Dutch Council of State (Raad van State), the court decided that, in principle, there is no obligation to caution employees of a legal entity. The regulator only has to caution representatives (i.e. board members) and natural persons involved for having actual control (feitelijk leidinggevenden) who might be imposed a personal fine.

In this case, in addition to the employee’s statements, the AFM based its decision on information obtained from the bank’s Dutch website and the online DNB Register. According to the court, this evidence, when viewed in conjunction with each other, formed sufficient evidence for the AFM to impose an administrative fine on the Maltese bank.

The full decision can be read here in Dutch:

Rb. Rotterdam 20 december 2018, ECLI:NL:RBROT:2018:10909.


Notifying unusual transactions and monitoring client relationships

In two recent cases, the highest appeal court (College van Beroep voor het bedrijfsleven, “CBb”) reviewed administrative fines that were imposed by the Financial Supervision Office (Bureau Financieel Toezicht, “BFT”). These fines were imposed against an accounting firm (boekhouder-fiscalist maatschap) and a tax consultant (fiscalist) respectively for allegedly breaching their obligation to (i) notify the Netherlands Financial Intelligence Unit (FIU) about unusual transactions of their clients and (ii) continuously monitor client relationships.

The court considered that in addition to the relevant law, decrees and available AML guidelines, other factors can also be relevant to determine whether or not a transaction is to be considered unusual. In both cases, the court found that BFT failed to prove that the respective parties wrongfully did not notify the FIU about certain transactions. The respective parties either did not have actual knowledge of the alleged unusual transactions or had a decent explanation on why the transaction could not be considered as unusual.

BFT also accused both parties of failing to properly monitor their client relationships. BFT held it against the tax consultant that she could not immediately provide evidence about a transaction of one of her clients. According to the court, the tax consultant managed to provide a well-founded explanation for the transaction during the course of the investigation and the alleged failure to monitor client relationships was therefore not upheld.

BFT was however successful in proving that the accounting firm failed to successfully monitor its client relationship. So whilst it may have lacked knowledge about certain transactions and could not be fined for failing to notify the FIU about these transactions, the court decided that this lack of knowledge was due to a failure to perform proper client monitoring – which in itself is a violation of the Wwft.
Both judgments can be read here in Dutch:

CBb 5 februari 2019, ECLI:NL:CBB:2019:48. CBb 5 februari 2019, ECLI:NL:CBB:2019:58.


Unrestricted cooperation charge? Not required to provide will-dependent material

The Dutch Central Bank (De Nederlandsche Bank, “DNB”) investigated whether two related companies were providing payment services without the required license and repeatedly requested them to provide information for this investigation. The companies however claimed they had the right to remain silent. DNB informed them that they had a duty to cooperate (Section 5:20 Awb) and imposed a cooperation charges on each of them, subject to a penalty of EUR 15,000.

The companies only partly complied with the cooperation charges and DNB declared the penalties incurred. In addition, DNB established that the companies violated their duty to assist and imposed an administrative fine of EUR 75,000 on each of them.

On appeal against the cooperation charge, the highest appeal court (College van Beroep voor het bedrijfsleven) held that part of the information requested by DNB was material existing dependent on the will of the companies (wilsafhankelijk materiaal).  DNB therefore should have included a restriction in its cooperation charge, stating that it would not use such will-dependent material for the purpose of imposing a fine or prosecution proceedings.

Given the absence of such restriction, the court declared void the cooperation charge and ordered DNB to amend the decisions. DNB then included the restriction in the cooperation charge and reduced the administrative fines from EUR 75,000 to EUR 65,000.

The court rejected the subsequent appeal of the companies against these amended decisions, as it considered that the companies breached their duty to cooperate. They could – but did not – provide the material that was not will-dependent. The court therefore decided that DNB could rightfully impose the administrative fines. The reduction of the administrative fines was considered proportional. The full decision can be read here in Dutch: CBb 16 april 2019, ECLI:NL:CBB:2019:156.


Cartel Damages Litigation – Quartely Report II

This is the second bureau Brandeis quarterly report of 2018 on the developments in the area of cartel damage litigation. You may download our quarterly report here.

Would you like to receive the next edition of our quarterly report by email? Please subscribe to our mailinglist by filling in this form or sending us an email through this link.


bB publishes in GLI: Cartels 2019

Recently, the Global Legal Insights to Cartels 2019 was published. Hans Bousie, Louis Berger en Rieneke Reijnen wrote the chapter on cartel damages litigation in the Netherlands. The authors discuss the advantages of litigation before the Dutch courts in this type of mass damages cases, in light of recent Dutch case law regarding class actions. The whole chapter is available here.