Arnout Koeman

On 17 July 2026, the Supreme Court handed down its judgment in the collective action brought by Stichting The Privacy Collective (“TPC”) against Oracle and Salesforce. The ruling is of significance to any party facing a collective action under the Mass Claims Settlement Act (“WAMCA”), and in particular regarding the question of when an interest group is sufficiently representative to claim compensation on behalf of a large group of affected parties. Background The proceedings concern the misuse of personal data belonging to ten million Dutch internet users. Among other things, TPC sought declarations of law and joint and several damages from Oracle and Salesforce totalling 5 billion euros – or 500 euros per person – on the grounds of alleged privacy breaches involving the placement of cookies and the creation of user profiles for targeted advertising. The Amsterdam District Court declared TPC’s claim inadmissible on the grounds that the representativeness requirement under Article 3:305a(2) of the Dutch Civil Code had not been met. The Amsterdam Court of Appeal quashed that judgment, declared TPC’s claim admissible after all, and referred the case back to the District Court. The parties to the proceedings lodged an appeal in cassation against this decision with the Supreme Court. The Supreme Court’s ruling The admissibility of an interest group under the WAMCA is assessed ex nunc The Supreme Court confirms that the appeal court assesses the admissibility of an interest group in WAMCA proceedings on the basis of the situation at the time of its decision, and not at the time of service of the summons. This is in line with the general principle that an appeal serves to have the case re-examined in the light of the current state of affairs. Neither the text nor the legislative history of the WAMCA provides any grounds for deviating from this principle. A ‘not negligible’ membership base is not sufficient The crux of the judgment concerns the interpretation of the representativeness requirement under Article 3:305a(2) of the Dutch Civil Code. The Court of Appeal had ruled that it is sufficient for ‘a not insignificant number of persons’ to support the action. The Supreme Court rejects that standard: the court must assess whether the collective claim has the support of ‘a sufficiently large proportion of the total group for whom the interest group represents’. The WAMCA does not specify a numerical criterion, but indicators include, amongst other things, the number of registered members or the number of people who have actively registered, and whether the registered individuals form a balanced representation of the total group. Support from other civil society organisations may, however, be taken into account when assessing whether the representativeness requirement is met. Furthermore, the Court of Appeal had failed to provide sufficient reasoning as to why anonymous ‘likes’ on TPC’s website demonstrated that the support actually came from affected individuals, whilst Oracle and Salesforce had contested this with sound reasoning. The assessment under Articles 80 and 82 of the GDPR may be deferred until the substantive assessment The Supreme Court ruled that the GDPR does not require the mandate requirement under Article 80(1) of the GDPR, in conjunction with Article 82 of the GDPR, to be assessed at the admissibility stage of WAMCA proceedings. The Court of Appeal was entitled to defer this issue, as well as the other aspects of Article 80 of the GDPR, until the substantive stage of the proceedings. There is no basis for referring questions for a preliminary ruling to the Court of Justice of the EU on this point. Exception to the prohibition on remittal to the lower court Finally, the Supreme Court accepts an exception to the main rule that, following the setting aside of a final judgment, the appeal court may not refer the case back to the court of first instance. Under the special, two-stage system of the WAMCA, where the Court of Appeal sets aside a wrongly issued declaration of inadmissibility, it may refer the case back to the District Court, because the court of first instance did not proceed to a substantive hearing on purely procedural grounds. Conclusion As the appeals concerning the representativeness test are upheld, the Supreme Court sets aside the judgments of the Amsterdam Court of Appeal of 18 June 2024 and 24 September 2024 in both cases and refers the proceedings to the Court of Appeal in The Hague for further consideration and decision. Implications for practice This judgment raises the threshold for collective actions for damages. Interest groups can no longer simply demonstrate ‘some’ support amongst their members; they will have to substantiate, with concrete evidence and figures, that a substantial proportion of the group they represent actually supports the action — particularly when damages are claimed on behalf of a very large and diffuse group. Anonymous expressions of support (such as ‘likes’) are not sufficient without further evidence that they originate from the alleged victims themselves. That said, the Supreme Court does confirm that it is permissible to take into account the support of other interest groups when assessing whether the representativeness requirement has been met. For defendants in WAMCA proceedings, the ruling provides a concrete basis for (further) challenging the representativeness of claimant interest groups, particularly in cases involving a large and generic support base and substantial sums claimed. At the same time, the Supreme Court confirms that GDPR-specific admissibility issues do not necessarily have to be resolved at the admissibility stage, which may improve procedural efficiency in complex privacy-related mass claims. Finally, the Supreme Court now explicitly offers claimants the opportunity to remedy any shortcomings regarding representativeness during the appeal proceedings: the assessment of this requirement must, in fact, take place ex nunc. Do you have any questions about the judgment discussed above or collective actions? Please contact Arnout Koeman, Lennart Hoeksema or one of our other WAMCA specialists.

On 16 April 2026, the Court of Justice of the European Union (“CJEU”) delivered an important judgment on the question of when victims in cartel damage cases may sue multiple group companies before a single court. The judgment is relevant for companies operating within international group structures, but also for parties seeking to recover damages following a competition infringement. Central to the case is the so-called ‘anchor defendant’: a defendant established in the Netherlands who is used to bring foreign co-defendants before the Dutch courts. The background The ruling stems from two Dutch proceedings before the Amsterdam Court of Appeal. The first case concerned claims for damages arising from the power cables cartel. The second case concerned claims for damages arising from an Italian cartel in the market for cardboard and packaging materials. In both proceedings, not only were companies summoned that were directly named in a cartel decision, but also other group companies. Some of these were established in the Netherlands and acted as anchor defendants. The claimants sought to bring all defendants jointly before the Dutch courts on the basis of Article 8(1) of the Brussels I bis Regulation. That provision allows multiple defendants to be summoned before the court of the domicile of one of them, provided there is such a close connection between the claims that joint proceedings are desirable. The aim of this is to prevent different courts from issuing conflicting decisions. The judgment of the CJEU The CJEU has ruled that a close connection may also exist where the anchor defendant is not itself designated as a liable party in the cartel decision. The decisive factor is whether there are serious indications that the anchor defendant belongs to the same ‘undertaking’ within the meaning of competition law as the entities to which the infringement has been attributed. The concept of ‘undertaking’ in EU competition law is broader than that of a separate legal entity. Different companies within a group may together form a single economic unit. In such a case, liability for a cartel infringement may, under certain circumstances, extend throughout the group. The CJEU does emphasize, however, that Article 8(1) must not be used artificially. A claimant may therefore not sue a Dutch company with no genuine connection to the dispute solely to bring foreign parties to the Netherlands. However, when determining jurisdiction, the court does not need to assess in full whether the claim against the anchor defendant will succeed on its merits. This may only be relevant if that claim is manifestly unfounded or artificial. Finally, the CJEU confirms that Article 8(1) not only designates international jurisdiction but also the court with relative jurisdiction within the Member State: the court of the domicile of the defendant against whom the action is brought. A national referral to another competent court within the same Member State remains possible, provided that this does not undermine the effectiveness of the Regulation. Implications for practice This judgment strengthens the position of claimants in cartel damages cases. They are given greater scope to concentrate related claims against various group companies before a single court, even if the anchor defendant is not itself named in the cartel decision. For international groups, this means that group structures must be scrutinized. Even companies that are not themselves the addressees of a fine decision may be involved in civil proceedings if they form part of the same economic unit. The judgment thus once again underlines the importance of effective competition law compliance across the entire group. Do you have any questions regarding international jurisdiction or actions for damages? Please contact Arnout Koeman, Lennart Hoeksema or one of our other Competition and EU or Commercial Litigation specialists.

On 10 April 2026, the Supreme Court handed down a judgment of significance to investment companies and conglomerates with multiple subsidiaries. The central question was whether a parent company fined by the Netherlands Authority for Consumers and Markets (“ACM”) for a cartel infringement committed by its subsidiary can recover the fine paid from that subsidiary. The Supreme Court’s answer is clear, but contains a nuance that is important in practice. The case Between 2004 and 2011, the investment firm Bencis held an indirect stake in Meneba, a Dutch flour manufacturer. From 2001 to 2007, Meneba participated in a cartel of flour manufacturers, in breach of article 6 of the Competition Act and article 101 of the Treaty on the Functioning of the European Union. The Dutch Competition Authority (the legal predecessor of the ACM) therefore imposed a fine of €9 million on Meneba in 2010. On 17 July 2014, the ACM also decided to impose a fine on Bencis. This fine followed Bencis’s sale of its shares in Meneba in 2011. The basis for this fine was that Bencis, as the parent company, was able to exercise decisive influence over Meneba’s commercial policy, meaning that, for the purposes of competition law, it formed a single undertaking with its subsidiary Meneba. The fine imposed on Bencis amounted to over €1.27 million. Although Bencis contested the fine, it was upheld by both the Administrative Court and the Trade and Industry Appeals Tribunal (“CBb”). Bencis considered it unfair that it had to pay a fine for the conduct of its former subsidiary and brought the matter before the civil court. It claimed compensation from Dossche (the party that had acquired Meneba in 2018) for the fine imposed on it. Both the District Court and the Court of Appeal dismissed the claims. As set out in further detail below, the cassation appeal lodged against this decision was also dismissed by the Supreme Court. The Supreme Court’s ruling The Supreme Court held, first and foremost, that the allocation of liability for a competition fine within a single undertaking is governed by national law, subject to the EU law principles of effectiveness and equivalence. Insofar as Bencis based its claim on a tort (Article 6:162 of the Civil Code), the Supreme Court ruled that a breach of competition law by a subsidiary is not automatically unlawful vis-à-vis the parent company. Additional circumstances are required for this, for example that the subsidiary deliberately misled the parent company or kept it unaware of the infringement. As Bencis failed to establish such additional circumstances, the claim for tortious liability was dismissed. The Supreme Court did not assess the substance of Bencis’s argument that Meneba had been unjustly enriched at Bencis’s expense, on the grounds that Meneba had paid a lower fine than would have been the case had it been the sole party fined. However, the Court of Appeal had already ruled that there was no unjust enrichment, a ruling which was upheld on appeal. Conclusion and practical implications This judgment could have far-reaching consequences for investment companies and other conglomerates. Where a parent company exercises decisive influence over a subsidiary, it runs the risk of being held personally liable for that subsidiary’s competition law infringements, even if it was unaware of them. As this judgment emphasises, recouping a fine imposed on the subsidiary from the parent company is only possible if the parent company can demonstrate additional circumstances from which it follows that the subsidiary acted unlawfully, for example through deception or the deliberate withholding of information. The lesson is clear. Investment firms and conglomerates would be well advised to invest in ongoing compliance within their portfolio companies. Neither conducting due diligence prior to an acquisition nor carrying out annual checks on whether any legal violations have been committed is, in itself, sufficient to avoid liability for fines or to recover any such fine from a subsidiary. Organisations that have not yet taken sufficient action in this area would benefit from offering their staff and directors targeted training and education in competition law. A well-structured compliance programme not only reduces the risk of breaching the cartel prohibition, but also strengthens the organisation’s position in any enforcement proceedings. Are you interested in compliance training courses, or do you have any questions on this subject or any other questions regarding competition law? Please do not hesitate to contact Arnout Koeman, Noa van den Brink, or one of our other competition law specialists.

The Dutch healthcare sector is facing radical changes. Rising healthcare costs, staff shortages and the call for a future-proof healthcare landscape are forcing hospitals, healthcare providers and health insurers to work more closely together and redistribute care. However, cooperation in healthcare quickly touches on competition law: when healthcare institutions make agreements amongst themselves about who provides which care, this can easily qualify as a prohibited market-sharing agreement. The Netherlands Authority for Consumers and Markets (“ACM”) recently published a letter on this subject, addressed to the parties participating in the ‘Round Table on a Future-Proof Healthcare Landscape through Concentration and Distribution’. This is an important signal for all healthcare providers and insurers active in regional partnerships. Description of the letter The ACM notes that healthcare markets are undergoing significant change. Healthcare stakeholders — including patient organisations, healthcare providers, hospitals and health insurers — are working together to create a regionally balanced healthcare landscape for the future. The Round Table, led by the Dutch Healthcare Institute, is the platform where this collaboration takes shape. ACM recognises the social importance of these developments and wishes to contribute constructively. At the same time, the regulator emphasises that agreements on the redistribution of healthcare between healthcare institutions must be assessed against competition rules. Such agreements may amount to market-sharing agreements — one of the most serious categories of competition infringements under Article 6 of the Dutch Competition Act and Article 101 TFEU. To provide legal certainty to the parties, the ACM has indicated that it will not initiate an investigation on its own initiative into regional healthcare collaborations that may restrict competition, provided the following conditions are met: All relevant parties from the healthcare triangle comprising healthcare providers (including medical specialists and nurses), health insurers and patients are involved. Which patient representatives must be involved depends on the agreements made. Depending on the specific case, patient representatives with specific knowledge of the condition in question may sometimes be required. Concrete, measurable and identifiable objectives have been set regarding affordable, accessible and high-quality care, and all relevant parties support these agreements . The ACM thereby sets enforcement priorities: it indicates where its enforcement focus does not lie, without the legal prohibition ceasing to apply. The information letter serves as a guide for parties to organise their cooperation in such a way that it remains within the bounds of competition law. What does this mean for your healthcare organisation? For healthcare institutions, health insurers and other healthcare parties, this notice has concrete implications: The obligation to assess compliance remains. The announcement that the ACM will not conduct proactive investigations does not relieve parties of the obligation to assess their cooperation agreements themselves against the competition rules. The prohibition on market-sharing agreements remains in full force. Document your cooperation carefully. Record the objectives underlying the cooperation, the alternatives considered and the intended benefits for patients. A thorough file is essential in the event of a retrospective review. Seek legal advice at an early stage. Particularly in the case of regional reallocation agreements — where hospitals or healthcare providers agree on who will provide certain types of care — the line between such arrangements and prohibited market-sharing agreements is fine. Seeking legal advice early on prevents costly mistakes. Engage with the ACM as a discussion partner. The ACM explicitly states its willingness to contribute ideas regarding potential collaborations. Informal consultation with the regulator — or a formal request for an opinion — can provide valuable clarity before agreements are implemented. Keep an eye on European dimensions. In the case of collaborations that may affect trade between EU Member States, Article 101 TFEU also applies. This is particularly relevant for border regions or where foreign healthcare providers are involved. In short: the ACM allows for cooperation in the healthcare sector, but sets clear boundaries. A proactive and legally sound approach is essential for any healthcare party involved in regional redistribution agreements. Contact Do you have any questions on this subject? Or do you have other competition law queries? Please feel free to contact Arnout Koeman or Monika Beck or one of our other competition law specialists.

On Friday, January 9, 2026, the European Commission published the guidelines associated with the Foreign Subsidies Regulation (“FSR”). In these guidelines, the European Commission clarifies various concepts in the FSR and explains the application of the FSR. This publication marks another step in making the FSR review process transparent.  Foreign Subsidies Regulation – how was it again? On July 12, 2023, the FSR became applicable. The FSR allows the European Commission to address distortions caused by foreign subsidies. The aim is to create a level-playing-field between all (EU and non-EU) companies operating within the EU. In a nutshell, the FSR contains three procedures: A reporting requirement for transactions involving subsidies given by third countries. This notification requirement applies if the target company, one of the merging parties or the joint venture has an EU turnover of at least EUR 500 million and these companies have received subsidies from third countries totaling more than EUR 50 million in the three years prior to the conclusion of the purchase agreement; A notification requirement for procurement involving subsidies from third countries. This notification requirement applies if the estimated contract value is at least EUR 250 million and the tenderer has received more than EUR 4 million in subsidies from third countries in the three years prior to the notification; and An ex-officio procedure by the European Commission, in which the European Commission launches an investigation on its own initiative. Since coming into force, the European Commission has launched a few investigations and has completed very few investigations as well as published decisions. As such, these guidelines, which the European Commission needed to draft according to the FSR, are also timely. They give (foreign) parties more legal certainty about their legal position under the FSR.    On what issues do the FSR guidelines provide more clarity? The comprehensive guidelines (48 pages) explain many parts of the FSR. A few points to highlight are the following: The assessment of market distortions caused by subsidies from third countries. The guidelines clarify that when the European Commission has concluded that a company has benefited from a foreign subsidy, the European Commission determines whether market distortion has occurred in two steps. First, the Commission examines whether the foreign subsidy strengthens the firm’s position in the EU market. Second, the European Commission examines the impact of the subsidy on competition in the market. In doing so, the European Commission analyzes whether the subsidy is responsible for a change in the company’s behavior and market dynamics to the detriment of other market parties. Assessment in tenders. The European Commission also provided further clarification on how it will assess market distortions caused by subsidies in tenders. In doing so, the European Commission will first examine whether the company adjusted the tender as a result of the subsidy. If so, the European Commission will assess whether the tender is unduly advantageous by comparing it with other comparable tenders and assessing the tender by comparing the conditions with the contracting authority’s own estimates. The balancing test. The balancing test can be applied by the European Commission on a grant-by-grant basis and takes into account the specific circumstances of the case. The guidelines explain how to weigh positive effects of a subsidy versus negative effects of a subsidy. In doing so, the European Commission will include only the positive effects that are specific to the subsidy. The test will also include the severity of the market distortion and the positive effects without the market distortion. An ex-officio investigation. The European Commission has provided more clarity in the guidelines on when it will initiate an ex-officio investigation. In doing so, the guidelines provide so-called safe harbor thresholds: for procurement procedures with a low value, subsidies under EUR 4 million and subsidies aimed at special circumstances (such as natural disasters), the European Commission will not start an investigation. What does this mean for your company? With the publication of these FSR Guidelines, the European Commission is taking the next step in the development of the FSR. These guidelines give companies and contracting authorities more clarity on how the European Commission assesses notifications. Importantly, the European Commission is also introducing safe harbor thresholds that will allow companies and contracting authorities to be more certain that the European Commission will not start an investigation. This will increase legal certainty. Do you have questions about the FSR or the guidelines discussed above? Please contact Arnout Koeman or Monika Beck or one of our other FSR and procurement law specialists.

On Tuesday, 2 December 2025, the Court of Justice of the European Union (”CJEU”) ruled in the case of Stichting Right to Consumer Justice and Stichting App Store Claims v. Apple. In this case, the plaintiffs claim that Apple abused its dominant position by retaining a 30% commission on purchases made through the App Store. According to the plaintiffs, this caused damage to users. The plaintiffs brought a case before the Amsterdam District Court on behalf of all affected users of the Dutch App Store under the Dutch Mass Claims Settlements Act (“WAMCA”). However, this case raised an important question: does the Amsterdam District Court have jurisdiction to hear such a dispute, given that the affected users are spread across Amsterdam and the rest of the Netherlands? Background Pursuant to Article 7(2) of Regulation 1215/2012, a court has jurisdiction to hear a dispute if the harmful event occurred within its jurisdiction or if the damage occurred there. The Amsterdam District Court ruled that it had international jurisdiction to hear the dispute between the plaintiffs and Apple. The court determined that Apple’s abusive practices took place on Dutch territory because the App Store is specifically designed for the Dutch market and is offered in Dutch. Moreover, the damage occurred in the Netherlands: the increased prices were paid there by users with a Dutch bank account. However, the court had doubts about its territorial jurisdiction. Therefore, the court referred questions to the CJEU for a preliminary ruling. After all, there are eleven districts in the Netherlands within which different courts have jurisdiction. If Article 7(2) of Regulation 1215/2012 is strictly applied, users who suffer damage in the Netherlands because of Apple’s actions can only bring a claim before the court in the district where their damage occurred (i.e. often where they live). Such a strict approach would require the plaintiffs to file their collective claims with eleven different Dutch courts. The ruling  The CJEU stated that the NL App Store and certain apps offered there are specifically designed for the Dutch market. In addition, the language used in the Dutch App Store is Dutch. This means that the Dutch App Store constitutes a “virtual space” that can be equated with the entire territory of the Netherlands. The damage resulting from purchases made in this virtual space therefore occurred throughout the entire territory of the Netherlands, regardless of where the users concerned were located at the time of purchase. Any Dutch court that has jurisdiction to hear the dispute based on article 7(2) of Regulation 1215/2012 therefore also has territorial jurisdiction to assess the entire dispute for all users. Such centralisation of jurisdiction in a single court is in line with the objectives of Regulation 1215/2012, specifically to improve access to justice and to prevent parallel proceedings on the same dispute. Implications of the Apple ruling for collective claims This ruling facilitates access to the courts for representative entities with exclusive standing, acting on behalf of large groups of individuals. When a representative entity initiates a collective action on behalf of a sufficiently defined group that has made purchases in a “virtual space”, any court in the country in which that space is offered has jurisdiction over the entire collective claim.  Do you have any questions about the ruling discussed above or collective actions? Please contact Arnout Koeman or one of our WAMCA specialists.