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Employers who terminate an employment contract after 104 weeks of incapacity for work can currently, subject to certain conditions, be compensated by the Employee Insurance Agency (UWV) for the transition payment they have paid. The scheme was due to be abolished with effect from 1 January 2027, but this has now changed: the abolition of the scheme has been postponed until 1 January 2028. What is the compensation scheme? Since 1 April 2020, employers have been able to apply for compensation for the transition payment they pay upon termination of the employment contract after the end of the waiting period (the 104-week period during which wages must continue to be paid in the event of illness). The scheme was introduced to combat the practice of so-called “dormant employment contracts” (slapende dienstverbanden): employment relationships that were formally kept in place after 104 weeks of illness solely in order to avoid paying the transition payment. In its Xella decision, the Dutch Supreme Court held that an employer is, in principle, required to cooperate with a reasonable request from a long-term incapacitated employee to terminate the employment contract, with payment of a transition payment calculated as at the day following the end of the waiting period, precisely because the transition payment can be recovered under the compensation scheme. What was due to change on 1 July 2026? In June 2025, the bill entitled “Limiting the compensation scheme for transition payments in cases of long-term incapacity for work to small employers” was submitted to Parliament. Under that bill, only small employers would still have been entitled to compensation from 1 July 2026. Whether an employer qualifies as a small employer is determined by reference to its total wage bill (2026 threshold: less than EUR 1,082,500). What will change on 1 January 2028? In a letter dated 24 April 2026, Minister Vijlbrief announced that the entry into force would be postponed until 1 January 2027. The reasons given were the caretaker status of the previous cabinet; the current cabinet’s intention to abolish the scheme in its entirety, partly in light of its wish to revise the rules on the transition payment; the fact that the bill has yet to be considered by both Houses of Parliament; and feasibility of implementation, as the UWV would otherwise have had to take irreversible steps in the coming months. On 29 May 2026, the cabinet amended the bill and decided that the compensation scheme would be abolished in its entirety with effect from 1 January 2027. It has now been announced that this date will be moved to 1 January 2028. This means that, from that date onwards, no employer will be able to claim compensation under the scheme. What does this mean for employers? The postponement creates an additional period during which employers can still apply for compensation under the current rules. If the waiting period (in principle 104 weeks) ends before 1 January 2028 and you subsequently terminate the employment of the employee with payment of the transition payment, you will in principle still be eligible for compensation from the UWV, provided that you apply in time (within six months of the payment having been made in full). From 1 January 2028, employers will no longer be able to recover the transition payment from the UWV upon termination after the waiting period. This has direct budgetary consequences and also raises questions, such as whether an employer, in its capacity as a good employer, is still obliged to cooperate with a reasonable request for termination from a long-term incapacitated employee. After all, in the Xella decision the Supreme Court reached that conclusion on the premise that the transition payment would be compensated, an option that may then no longer exist. On 2 June 2026, the Minister acknowledged these concerns in a memorandum. He expects the decision to lead to an increase in the number of dormant employment contracts. It is to be hoped that the legislature will provide clarity on this point in the run-up to 1 January 2027. Questions? Do you have any questions about (the abolition of) the compensation scheme and/or the termination of the employment contract of a long-term incapacitated employee? Please do not hesitate to contact Lisa van Baarsel, Rose Horstman or any of our other employment law specialists.

On 8 September 2026, the Grand Chamber of the Court of Justice of the European Union (“CJEU”) handed down its judgment in Case C-298/23 in the proceedings between Inter IKEA Systems BV (“IKEA”) and Algemeen Vlaams Belang VZW (“Vlaams Belang”), amongst others. The CJEU clarified the conditions under which freedom of expression, including political parody, may constitute a “due cause” for the unauthorised use of a well-known trademark under Article 9(2)(c) EU Trademark Regulation (EUTMR) and Article 10(2)(c) and 10(6) of the Trademark Directive (TMD). What preceded In 2022, the Belgian political party Vlaams Belang launched a campaign entitled “IKEA-plan – Immigratie Kan Echt Anders” (“Immigration Can Truly Be Different”), presenting its proposals for reform of Belgian asylum and immigration policy. The campaign made extensive use of signs and visual elements closely resembling the well-known IKEA trademarks, including the distinctive typeface, blue-and-yellow colour palette, and IKEA-style assembly-manual imagery. IKEA brought trademark infringement proceedings before the Commercial Court in Brussels. One of the parties involved is Vrijheidsfonds VZW (“Vrijheidsfonds”), a non-profit association that ran the campaign on behalf of Vlaams Belang. Vrijheidsfonds acknowledged the unauthorized use and argued that the popularity of the IKEA trademarks was deliberately exploited to amplify its political message, constituting a “due cause” under EU trademark law. The referring court stayed proceedings and submitted a preliminary reference to the CJEU. Assessment of the CJEU Two legal routes The CJEU distinguishes and confirms two applicable routes that freedom of expression, including political opinion and political parody, can in principle constitute a “due cause”: (i) use in the course of trade for goods or services under Article 9(2)(c) EUTMR / Article 10(2)(c) TMD, and (ii) use other than to distinguish goods or services under Article 10(6) TMD (implemented for Benelux trademarks in Article 2.20(2)(d) BCIP). Freedom of expression as “due cause” – high threshold  The trademark owner must first demonstrate actual infringement of its well-known trademark or at least a serious risk that such infringement will occur in the future. Once that threshold is met, a general invocation of free speech is insufficient. The third party must demonstrate that, in the specific circumstances, its interest in freedom of expression outweighs the exclusive rights of the trademark owner. The CJEU identified the key criteria for that balancing exercise: Intent and good faith: use must be genuinely motivated by the exercise of free expression in good faith, not merely to ride on the coattails of a well-known trademark or to damage it; Link to the trademark itself: the strongest justification exists where the trademark is used to express an opinion about the trademark, its owner, or its products/services, or to contribute to a debate of general interest connected to the trademark; Public interest: political speech and satire enjoy strong protection – but the debate must have a genuine connection to the trademark as such; Consequences for the trademark owner: the intensity, scale, and manner of use, the degree of similarity, and whether use creates the impression that the owner endorses the political message are all relevant. Importantly, the outcome of the balancing exercise under Article 10(6) TMD need not necessarily be the same as under Article 9(2)(c) EUTMR / Article 10(2)(c) TMD. The CJEU explained that expression outside the commercial domain may enjoy broader protection under the ECHR case law than strictly “commercial” expression. Application to IKEA/Vlaams Belang The CJEU provided clear guidance to the referring court. IKEA is an acronym coined from personal names, carrying no independent semantic meaning that could justify its use in this context. Vrijheidsfonds used the trademarks not to comment on IKEA, its products, or its practices but solely to use their reputation in a debate on immigration policy unconnected to the trademarks. The signs were very strongly similar or identical, the use was repeated, and it was disseminated online to a potentially unlimited audience. The CJEU further noted that the public might perceive IKEA as endorsing Vlaams Belang’s message contrary to IKEA’s political neutrality. The CJEU therefore concluded that Vrijheidsfonds’ interest in political expression did not appear to outweigh IKEA’s rights, subject to final verification by the referring court. Conclusion This judgment is significant for trademark owners across the EU. The CJEU makes clear that well-known trademarks enjoy robust protection even in the context of political campaigns: freedom of expression cannot be used as a blanket license to free ride on a well-known trademark. The decisive question is whether use of the specific trademark is genuinely necessary to exercise free speech, which will rarely be the case where a trademark is exploited solely for its reputational pull to amplify an unrelated message. Trademark owners confronted with unauthorized use in political or satirical contexts should document the absence of any genuine link between their trademark and the (political) debate, the extent of dissemination, and any reputational harm or false impression of endorsement. Conversely, third parties must be prepared to demonstrate concrete, good-faith reasons why use of the specific trademark was necessary to convey their message.

On 3 September 2026, the European Commission published new guidelines on how it deals with large companies that abuse their market power to sideline competitors. Following a three-year process, involving extensive consultations with businesses, academics and public authorities, clear rules are now in place. These guidelines are important for anyone doing business in the EU. The background Imagine this: a single company is so large and powerful in a particular market that competitors have hardly any fair chance to grow or even enter the market. That is what competition law seeks to prevent. European rules have long prohibited this: Article 102 of the EU Treaty stipulates that a company with a dominant position must not abuse that position to drive others out of the market. But what exactly constitutes ‘abuse’ has been a matter of dispute for years. Until now, the Commission has used a 2008 document as a guide, which no longer accurately reflected current practice involving large technology companies and digital platforms. That document is now being withdrawn and replaced by the new guidelines. What is changing? For the first time, the new guidelines explain in a coherent manner how the Commission assesses whether a company is dominant and whether it is abusing its position to squeeze out competitors. A number of points stand out. When is a company ‘dominant’? A company that controls more than half of a market is generally regarded as dominant. However, a dominant position can also exist with smaller market shares, sometimes even below forty per cent. This is the case, for example, if customers are heavily dependent on that company or if it is practically impossible for competitors to enter that market. What constitutes prohibited conduct? The guidelines describe specific forms of abuse: predatory pricing (setting prices so low that competitors go bankrupt), exclusive dealing arrangements (requiring customers to buy exclusively from the dominant firm), refusing to supply competitors, and tying. Another new feature is the explicit focus on behaviour that is, by its very nature, harmful to competition, such as the active dismantling of infrastructure on which a competitor relies, in which case the Commission is now required to prove virtually no justification at all. When is such conduct nevertheless permitted? A dominant firm may defend itself by demonstrating that its conduct is objectively necessary or that the benefits to consumers outweigh the disadvantages. The bar is set high: the greater the market power, the more convincing the evidence must be. Implications for practice The new guidelines are primarily intended to provide clarity. Any major market player operating in Europe would be well advised to assess its commercial strategy against these guidelines. Issues such as discount structures for large customers, exclusivity agreements with distributors or the refusal to grant access to proprietary infrastructure can now be assessed against a clearer framework. For smaller companies and new entrants, the publication actually provides a framework: if you suspect that a major player is forcing you out of the market, the guidelines offer tools to substantiate a complaint to the Commission or the national competition authority. National courts can also use the guidelines as a point of reference. The Commission emphasises, however, that the guidelines relate exclusively to behaviour that excludes competitors. Abuse that directly harms consumers — such as excessively high prices — falls outside the scope of the current guidelines; the Commission reserves the right to publish separate guidelines on this at a later date. Furthermore, the Court of Justice of the EU has the final say on the interpretation of the concepts set out in the new guidelines . Do you have any questions about the new guidelines, or would you like to know what they mean for your business or sector? Please contact Arnout Koeman, Monika Beck or one of our other Competition and EU specialists.

On 5 August 2026, the Provisions Judge of the District Court of The Hague (“Provisions Judge”) rendered his decision in the PI proceedings initiated by Novo Nordisk A/S (“Novo Nordisk”) against Ceban Ziekenhuisfarmacie B.V. (“Ceban”). Novo Nordisk was granted a preliminary injunction against Ceban for infringing its SPC 300936 (“SPC 936”) for semaglutide. Ceban had compounded and supplied a semaglutide-containing nasal spray under the name Semanova. According to the Provisions Judge, the pharmacy exemption under article 54c(e) of the Dutch Patent Act (ROW 1995) must be construed narrowly. It applies only where medical necessity for an individual patient is demonstrated. It does not cover structural or large-scale compounding of patented medicines. What preceded Novo Nordisk is the holder of SPC 936 for the product semaglutide, based on EP 1 863 839 (“EP 839”). EP 839 covers the active ingredient semaglutide and expired on 20 March 2026. SPC 936 is valid until 19 March 2031. Novo Nordisk markets several products containing semaglutide in the Netherlands: Ozempic® for type 2 diabetes and Wegovy® for obesity, both as once-weekly subcutaneous injections, and Rybelsus® for type 2 diabetes in tablet form. Ceban, a pharmacy, compounded a semaglutide-containing nasal spray under the name Semanova in 2025, without a marketing authorisation and without Novo Nordisk’s permission. Ceban supplied 44 nasal sprays, partly on prescription to its own patients and partly to other pharmacies. It also listed Semanova in the G-standaard, the Dutch pricelist. In total, Ceban imported 600 grams of semaglutide from a Chinese supplier, sufficient for 15,000 vials. After Novo Nordisk’s cease-and-desist letter and the writ of summons, Ceban stopped supplying the nasal spray. Shortly thereafter, a Ceban employee gave a presentation at a pharmacists’ conference in Porto entitled “Semaglutide nasal spray: a Novel Compounded Formulation”, including a slide headed “Where did we get the idea from?” Pharmacy exemption – assessment Since the validity of EP 839 and SPC 936 was not contested, the key question was whether Ceban could rely on the pharmacy exemption under article 54c(e) of the Dutch Patent Act, which was introduced into the Dutch Patent Act in February 2019. The Provisions Judge first clarified that the regulatory pharmacy exemption is not the same as the (patent-law) pharmacy exemption under article 54c(e) of the Dutch Patent Act. The regulatory exemption concerns an exception to the requirement of obtaining a marketing authorisation, which serves to protect public health and the quality, safety and efficacy of medicines, in order to safeguard the availability of necessary medicines for individual patients. The pharmacy exemption based on article 54c(e) of the Dutch Patent Act, by contrast, concerns an exception to the exclusive rights of the patentee. Therefore, even if a pharmacy preparation were to fall within the regulatory pharmacy exemption, this does not automatically entail that the requirements of the pharmacy exemption based on patent law are met. The Provisions Judge held that article 54c(e) of the Dutch Patent Act is an exception to the exclusive rights of the patentee, which must be construed narrowly. Its rationale lies in public health: it applies only where there is a medical necessity, e.g. where an individual patient requires a dosage or method of administration that is not available in the patentee’s authorised medicinal product. The exception does not allow a pharmacy to compound a patented medicine on a structural scale without the patentee’s consent. The Provisions Judge considered that supplying the nasal sprays to other pharmacies, keeping them in stock for that purpose and listing Semanova in the G-standaard fell outside the scope of the pharmacy exemption. The listing in the G-standaard was specifically considered an act of offering, reserved to the patent holder. As regards Ceban’s own patients, the Provisions Judge found that Ceban had not made sufficiently plausible that there was an unmet medical necessity. Ceban stated that the nasal spray had been developed for patients with a fear of needles, but did not explain why the individual patients concerned had such a fear or why off-label prescribing of Rybelsus®, Novo Nordisk’s semaglutide tablet, would not have been sufficient. The Provisions Judge considered that Ceban’s conduct pointed towards structural and potentially large-scale use. In particular, the Court referred to Ceban’s presentation in Portugal, the import of 600 grams of semaglutide, sufficient for 15,000 vials, the listing in the G-standaard and the use of the brand name Semanova. These circumstances were difficult to reconcile with Ceban’s position that the nasal spray was prepared only for individual patients on the basis of medical necessity. The Provisions Judge therefore held that Ceban could not rely on the pharmacy exemption and ordered Ceban to cease its infringement of SPC 936 in the Netherlands. Conclusion The decision confirms that the pharmacy exemption under article 54c(e) of the Dutch Patent Act is distinct from the regulatory pharmacy exemption. It also points out that the exemption based on the Dutch Patent Act is construed narrowly and does not cover structural or large-scale compounding without demonstrated medical necessity for individual patients.

On 5 August 2026, the Administrative Division of the District Court of The Hague (‘the Court’) rendered its decision in proceedings between Merck Serono S.A. (‘Merck’) and the Dutch Patent Office (Octrooicentrum Nederland, ‘OCNL’). The Court upheld OCNL’s refusal to grant an SPC for the product cladribine, marketed as Mavenclad for the treatment of multiple sclerosis. This decision confirms that, following the CJEU’s ruling in Santen, a marketing authorisation (‘MA’) for a new therapeutic indication of a previously authorised active substance cannot qualify as the first MA for the product within the meaning of Article 3(d) of Regulation 469/2009 (‘SPC Regulation’). What preceded On 22 February 2018, Merck filed an SPC application (no. 300930) for cladribine based on EP 1 827 461 (‘EP 461’), referring to the MA for Mavenclad (EU/1/17/1212, dated 24 August 2017) as the first MA. EP 461 was granted for the active ingredient cladribine and is a second medical use patent.  EP 461 covers a regimen for treating multiple sclerosis. EP 461 expired on 20 December 2025. Cladribine had previously been authorised as the active ingredient in two other medicinal products: Leustatin (1995) and Litak (2004), both for the treatment of hairy cell leukaemia. OCNL refused the SPC application as it did not meet the requirement of Article 3(d) of the SPC Regulation. Merck filed an appeal against this decision. Merck argued that OCNL should have granted the SPC. Mavenclad enables the first use of cladribine for the treatment of multiple sclerosis, which is a new therapeutic use. The earlier MAs for Leustatin and Litak related to a different therapeutic indication, namely hairy cell leukaemia. Merck further submitted that it had undergone a full de novo development programme (Phase I, II, III, and IV studies) to obtain the MA for Mavenclad. According to Merck, the CJEU’s ruling in Santen (C-673/18) is not the appropriate framework and the Court should instead follow Neurim (C-130/11). If necessary, the Court should refer preliminary questions to the CJEU. Assessment of the Court – first MA The parties agreed that the conditions of Article 3(a), (b), and (c) of the SPC Regulation were met. The disputed issue was whether Article 3(d) is satisfied: could the MA for Mavenclad be regarded as the first MA for cladribine as a medicinal product. The Court answered this question in the negative. The Court held that the text of Article 3(d) is clear: the MA on which the SPC is based must be the first MA for placing the product on the market as a medicinal product. The Court observed that an MA for a new therapeutic application (second medical indication) of a previously authorised active substance is, according to the CJEU, explicitly not to be regarded as the first MA within the meaning of Article 3(d). It was not in dispute that the MAs for Leustatin and Litak relate to the same active ingredient, namely cladribine. It follows that the MA for Mavenclad is not the first MA for placing cladribine on the market as a medicinal product, so that no SPC can be granted for that product. The Court rejected Merck’s argument that Santen does not provide the correct framework and that the Court should instead follow Neurim. The Court pointed out that the CJEU in Santen explicitly departed from its earlier decision in Neurim. The Court referred to its earlier decisions in Genmab (2023) and in Boehringer (2025), in which it had already addressed the interpretation of Article 3(d) of the SPC Regulation, and observed that ‘… those considerations are repeated and incorporated herein’. In respect of the Boehringer case, we refer to our La Gro Pharma Update of 28 May 2025. No preliminary questions to the CJEU The Court found no reason to refer the case to the CJEU for preliminary questions on the interpretation of Article 3(d). It qualified the matter as an acte éclairé. The fact that SPCs for cladribine have been granted in some other Member States does not lead to a different outcome. The same applies to the fact that the BPatG in its referral decision of 12 December 2025 in the parallel Boehringer case provisionally took a different view on certain points than this Court (and the Cour d’Appel de Paris). It referred preliminary questions to the CJEU (case C-15/26). The BPatG also acknowledged that the CJEU in Santen expressly departed from its previous case law, but doubts whether Santen’s broad interpretation also applies where the earlier MA concerns a human medicinal product and the later MA a veterinary medicinal product, i.e. the situation in the Boehringer case. According to the Court that doubt does not arise here, where both the earlier and later MAs concern human medicinal products. Conclusion The Court dismissed Merck’s appeal and upheld OCNL’s refusal to grant an SPC for cladribine. The MA for Mavenclad is not the first MA for cladribine as a medicinal product within the meaning of Article 3(d) of the SPC Regulation, as two earlier MAs had been granted for the same active ingredient. Although no SPC can be granted, Mavenclad continues to enjoy regulatory market exclusivity under Regulation (EC) No 726/2004 until August 2027.

On 28 July 2026, the Dutch Court of Appeal (“CoA”) handed down its decision in the appeal proceedings between Sandoz B.V. (“Sandoz”) and Bayer Intellectual Property GmbH (“Bayer”). The CoA overturned the District Court’s decision of 1 November 2023. The CoA held that the NL part of EP 1 845 961 B1 (“EP 961”) lacked inventive step based on newly introduced prior art comprising a patient information form and accompanying booklet for the Einstein-DVT study (“Study”), sponsored by Bayer. What preceded In our Pharma Update of 28 November 2023, we reported on the first instance decision of the District Court (“Court”), holding EP 961 inventive. The Court found, starting from the Harder Poster as the closest prior art, that the skilled person would not have had a reasonable expectation of success that rivaroxaban would be safe and effective in a once-daily (OD) dosing regimen. Sandoz appealed this decision, claiming that EP 961 is not only invalid for lack of inventive step but also for lack of novelty. Transparency request under Open Government Act On appeal, Sandoz introduced new prior art: a patient information form and accompanying booklet that was provided to patients participating in the Study. The Study was a dose finding phase II clinical study into the treatment of acute deep vein thrombosis with rivaroxaban. Sandoz received this document following a request for transparency under the Dutch Open Government Act (Wet open overheid). Assessment of the CoA – new prior art Public availability of the patient information form The CoA rejected Bayer’s argument that the patient information form was not publicly accessible prior art, as patients were implicitly bound by a duty of confidentiality due to their special relationship with the researchers and Bayer, as sponsor. Applying the EPO Guidelines, the CoA held that a document is made available to the public if members of the public could gain knowledge of its content and there was no express or tacit confidentiality obligation. Since this information was provided to at least two patients not bound by confidentiality before the priority date of EP 961, it formed part of the state of the art. Disclosure of the claim features Claim 1 of EP 961 was divided into the following features: (i) a tablet of rivaroxaban; (ii) with rapid release; (iii) for the treatment of thromboembolic diseases (TEDs), implying therapeutic efficacy and safety; (iv) in an OD dosing regimen; and (v) for at least five consecutive days. The CoA found that the key sentence in the patient information is: “A new anticoagulant has been developed for the treatment of deep venous thrombosis. This drug, BAY 59-7939, is available in tablet form, is taken once a day and works fast” (translated). The CoA held that feature (v) was undisputedly disclosed elsewhere in the patient information form. The assessment of the CoA thus focused on features (i), (ii) and (iii): The patient information form referred only to the internal Bayer code BAY 59-7939, not to rivaroxaban. However, a free-access article by Perzborn was available online before the priority date, in which BAY 59-7939 was identified by its chemical name and structural formula as rivaroxaban. The CoA held that, although the code did not form part of the common general knowledge (CGK), the skilled person, upon encountering the code, would have found the Perzborn article through a routine online search without inventive effort and identified the substance as rivaroxaban. The patient information form stated that the drug “works fast”. Bayer argued that this refers to the onset of action, not to the release from the tablet, and that rapid action can also occur with extended-release formulations. The CoA rejected these arguments, holding that a drug can only work after it has been released from the tablet, so the statement that it “works fast” necessarily implies a rapid-release tablet. The argument that it could also indicate an extended-release formulation was rejected because the patient information contained no indication that prolongation of the effect was intended. The CoA found that the patient information form disclosed that the OD dosing regimen was at least somewhat effective. The skilled person would assume that the researchers of the Study would not have set up a phase II study into the optimal OD dosing without a scientific basis for believing that an OD regimen has at least some efficacy. As to safety, the CoA found that the patient information indicated that no side effects were known. According to the information, underdosing was not considered a greater problem than with standard treatment (e.g. there were fewer and less strict check-ups). Regarding overdosing, the patient information disclosed that the risk of bleeding was comparable to that of standard anticoagulants. Combined with the known safety of rivaroxaban in a 30 mg twice-daily (BID) dosing from the phase I studies, the skilled person would have no reason to expect overdosing at the lower OD dosages. Conclusion The decision demonstrates that transparency requests can be an effective means of retrieving prior art, particularly regarding sponsor-generated clinical trial materials. It also confirms that patient-facing information may enter the state of the art in the absence of an express or tacit confidentiality obligation. In its decision the CoA rejected Sandoz’s novelty objection, but held that the disclosed patient information led to a lack of inventive step. The only step the skilled person had to take was to identify BAY 59-7939 as rivaroxaban, which could be achieved through a routine internet search without inventive effort. The features of claim 1 were disclosed to such an extent that the skilled person, would have regarded the Study as having a sound scientific basis, would have been able to predict its successful outcome and would have initiated it. The CoA revoked the NL part of EP 961, dismissing Bayer’s infringement claims.

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.

Previously, I wrote about the European Commission’s revision of the SGEI Decision on 16 December 2025. The revised version of this state aid exemption came into force on 8 January 2026. The Dutch Ministry of the Interior and Kingdom Relations (BZK) has now published a guide explaining what the new state aid rules mean in practice for social and affordable housing (hereinafter: ‘the SGEI Guide’). The SGEI Guide is primarily intended for municipalities and provincial authorities, but is also useful for, for example, housing associations and developers. Recap on state aid and the SGEI exemption State aid occurs when a public authority uses state resources to grant a selective advantage to an undertaking that is not in line with market conditions and which may affect competition and trade between Member States. In principle, such aid must be notified to the European Commission, unless an exception applies. The SGEI Decision is one of these exceptions: public authorities may compensate undertakings entrusted with the provision of a service of general economic interest (SGEI) without prior notification, provided that the conditions of the SGEI Decision are met. One of these conditions is the setting out of the state aid instrument in a SGEI designation decision. The revised SGEI Decision (EU 2025/2630) has broadened the scope of the exemption. This extension includes, amongst other things, an increase in the compensation ceiling to €20 million per year, more lenient checks on overcompensation, and an additional annex relating to housing construction, under which affordable housing, in addition to social housing, may also qualify as a SGEI. You can read more about the changes introduced by the revision in my previous blog post: link. What does the SGEI Guide explain? The SGEI Guide from the Ministry of the Interior and Kingdom Relations (BZK) puts the European amendments to the SGEI Guide into Dutch practice and offers concrete guidance for municipalities, provincial authorities and housing associations. The SGEI Guide covers, amongst others, the following topics: Two SGEI categories: In addition to the social housing SGEI, there is now an affordable housing SGEI for mid-range rental and affordable owner-occupied housing. The SGEI Guide explains how these categories are defined in accordance with Dutch legislation (specifically the Act on Strengthening Regional Social Housing on the Basis of Income Thresholds, e. Wet versterking regio op de volkshuisvesting op basis van inkomensgrenzen) and what conditions apply to the provision of support for social and/or affordable housing. It also explains that, for support for affordable housing, a level playing field must be ensured, and that businesses must be eligible for state aid under the same conditions. This can be achieved, for example, through a selection procedure. Broader scope of application: the SGEI exemption for housing is not limited solely to housing construction but also covers, amongst other things, new-build projects, land acquisition, renovation, sustainability improvements and management costs. More lenient checks on overcompensation: the review period is extended from three to five years, and organisations engaged almost exclusively in SGEI activities are exempt from periodic ex-post checks. New transparency rules: from 1 January 2028, aid exceeding €1 million must be entered into a central register within 20 working days. Maintenance period: the SGEI Decision requires, in principle, that the SGEI be maintained for 20 years following the granting of the subsidy, unless a justified exception can be made. The Wet versterking regio op de volkshuisvesting op basis van inkomensgrenzen sets a longer period of 25 years for social housing; this must also be taken into account when providing social housing under the SGEI Decision. Examples of state aid instruments: the revised SGEI Decision does not prescribe any specific state aid instruments. Public authorities are free to choose the type of instrument they use to grant aid. The SGEI Guide provides four examples of aid instruments on the basis of which SGEI aid may be granted, namely a project grant, a loan guarantee, a loan facility (whether or not from a revolving fund) and a reduction in the land price. Finally, the SGEI Guide contains an example of a designation decision from the fictitious municipality of Nergenshuizen. This example illustrates how a SGEI designation for social housing, mid-range rental accommodation and combined housing schemes for senior citizens and students can be structured, including provisions on compensation, monitoring and the maintenance period. Contact Do you have any questions about the application of the SGEI Decision or other state aid-related matters? Please feel free to contact Monika Beck or one of our other state aid specialists.

On 2 July, the Court of Appeal of the UPC (“CoA”) handed down its decision in the PI proceedings between Guardant Health, Inc. (“Guardant”) and Sophia Genetics SA et al. (“Sophia”). Both parties appealed the decision of the Local Division Paris (“LD Paris”) of 23 January 2026. Although Guardant successfully objected to the finding that the patent was likely invalid for added matter, the CoA held that the urgency requirement was not met and therefore no PI was granted. What preceded Guardant is the proprietor of EP 3 443 066 (“EP 066”), which claims a method for detecting the presence or absence of colorectal, ovarian, lung or pancreatic cancer. EP 066 was granted on 2 October 2024 and claims priority of 14 and 18 April 2016. No opposition was filed. In addition to its UPC designation, EP 066 is in force in CH, ES and the UK. Sophia offers the MSK-DDM test in the UPC territories, CH, ES and NO. On 27 May 2025, Guardant sent a warning letter to Sophia arguing that the MSK-DDM test falls within the scope of several patents, but not mentioning EP 066. Sophia replied on 20 June 2025. On 14 July 2025, Guardant started litigation in the UK for infringement of the UK parts of several patents, including EP 066. It lodged its reasons on 18 August 2025. On 29 August 2025, Guardant applied for a PI before the LD Paris for the alleged infringement of several patents, including EP 066. The LD Paris held that the urgency requirement was met, but that EP 066 was likely to be invalid for reasons of added matter and therefore rejected a PI. Guardant appealed the order regarding EP 066 and costs; Sophia lodged a cross-appeal. Assessment of the CoA – urgency The CoA held that the assessment of unreasonable delay depends on the circumstances of the individual case. The decisive point in time is when the applicant has, or should have had, after exercising due diligence, the necessary facts and evidence. The burden of proof rests on the applicant. The CoA found that Guardant acted with unreasonable delay based on the following five principles: 1) A patent holder is not obliged to assert all patents in one application for a PI. If a patent holder has the necessary information for some, but not all patents, delaying the filing until it has information regarding all patents may constitute unreasonable delay. The CoA considers it compatible with procedural efficiency and the frontloaded system to file multiple separate applications weeks apart before the same division, since asserting multiple patents in a single application carries the risk that a prompt decision cannot be expected. 2) If a patent holder is aware, on the basis of a certain document, that one or more of its patents have been infringed, it must not turn a blind eye to the fact that the document also indicates the infringement of its other patents. The fact that the warning letter did not concern EP 066 does not justify the conclusion that Guardant was unaware of the infringement of EP 066. 3) While a patentee is generally not obliged to monitor the market, it must investigate the market with due diligence once it becomes aware of specific circumstances suggesting infringement. As soon as Guardant was aware of infringing activities in the UK, it was expected to investigate whether infringement occurred in the UPC territory, CH and ES. 4) For legal entities, the decisive factor is when the authorised representative body or an individual capable of pursuing the infringement internally becomes aware of the possible infringement (e.g. an employee of the legal department or a senior member of the sales department). The fact that other employees attended Sophia’s online seminars is insufficient, as they were not involved in evaluating potential patent infringement claims and had no obligation to forward information to decision makers. 5) As a general rule, a patent holder may wait a reasonable time for a response to a warning letter before drafting and lodging an application for a PI. However, since the warning letter did not concern EP 066, there was no reason for Guardant to wait for Sophia’s response before drafting an application regarding EP 066. Based on a certain document, the CoA concludes that Guardant (should have) had knowledge of the alleged infringement of the MSK-DDM test by 1 May. All information Guardant further relied upon was publicly available, requiring no substantial investigative measures. A diligent patentee could have completed this inquiry within two weeks, making 15 May 2025 the latest date on which Guardant should have been aware of the infringement in the UPC territory, CH and ES. Therefore, leaving a three-months’ gap from 15 May 2025 until 29 August 2025 for submitting the PI application, while Guardant stated it needed two weeks for drafting, is unreasonable. The patent’s complexity, technical tests and expert consultation do not justify the delay: Guardant failed to specify when the analyses began, for which patents they were essential, their duration or why the delay was reasonable. Even assuming the tests took a month, a two-months delay remained unaccounted for. Conclusion This decision provides a comprehensive guidance on urgency required for PIs in the UPC. The CoA establishes that a patentee: 1) need not assert all patents in one application and must not delay filing once it has sufficient information for some; 2) must not ignore infringement of other patents indicated in a document it has reviewed; 3) must investigate infringement in other designated territories once aware of infringement in one; 4) is deemed aware only when the authorised representative body or an individual capable of pursuing the infringement internally becomes aware of it and 5) may wait for a response to a warning letter, but not if that letter did not concern the patent at issue. As Guardant failed to meet these principles, no PI was granted.

On 12 May 2026, the House of Representatives (Tweede Kamer) approved the legislative proposal More Certainty for Flexible Workers. This brings the introduction of new rules for on-call workers, temporary employees, and agency workers one step closer. In addition, the House of Representatives made a number of significant amendments to the proposal. The legislative proposal More Certainty for Flexible Workers aims to provide employees on flexible contracts with greater certainty regarding their income and working hours. Flexible contracts include, for example, on-call contracts, agency work contracts, and fixed-term contracts. In the Netherlands, nearly three in ten employees work on a flexible contract, making the Netherlands the front-runner in flexible working for the EU. Zero-hours contracts to be abolished, except for under-18s, pupils, students, and those entitled to the state pension One of the most widely discussed aspects of the legislative proposal is the replacement of zero-hours contracts with bandwidth contracts. A bandwidth contract closely resembles the current minimum/maximum contract, but the minimum number of contracted hours may no longer be zero, and the maximum may not exceed 130% of the minimum. An exception is made for young people under the age of 18, those that still go to school, students, and those entitled to the state pension (AOW) insofar as they work no more than 16 hours per week. This group may continue to work on a zero-hours contract. The rationale behind this is that workers in these categories still have a legitimate need for flexibility. The successive contracts rule is only broken after 36 months A fixed-term contract can, by operation of law, convert into a permanent contract. This is known as the ‘successive contracts rule’ (ketenregeling). The rule is triggered when a chain of contracts has exceeded a period of 36 months, or when a fourth contract is concluded, as long as the chain was not interrupted for a sufficiently long period at some earlier point. Currently, a gap of six months between two contracts breaks the chain. Under the legislative proposal, this interruption period will increase to 36 months. Only for pupils and students working no more than 16 hours per week will the interruption period remain at six months. This amendment is designed to prevent abuse: after the change, merely waiting before offering an employee a new contract is substantially less practical. The rules set out in the paragraph will apply to contracts concluded after 1 January 2028. Contracts concluded before that date will continue to be governed by the current rules. Improved legal position of agency workers Finally, the legislative proposal strengthens the position of agency workers. Phase A of an agency arrangement will be reduced from 78 weeks to 52 weeks. Phase B will change from a maximum of six contracts over four years to six contracts over two years. After Phase B, an agency worker must be offered a permanent employment contract. The House of Representatives has added to the legislative proposal that an agency clause (uitzendbeding) may not be invoked during any period in which an agency worker is incapacitated for work due to illness. As a result, an agency worker can no longer lose their job and income simply because they have fallen ill. Furthermore, the House of Representatives has tightened the rules on the terms and conditions of employment applicable to agency workers. The legislative proposal already establishes the principle that agency workers are entitled to at least equivalent terms and conditions of employment as employees who are directly employed by the client. For specific employment conditions, such as pay, allowances, holiday pay, bonuses, end-of-year payments, and leave arrangements, derogation will no longer be possible at all. What does this mean in practice? The legislative proposal is now before the Senate (Eerste Kamer). It is expected to be adopted, although further amendments may be made before it passes. Do you have questions about the effect the legislative proposal More Certainty for Flexible Workers will have on your organization? Feel free to contact Rose Horstman or any of our other specialists.

In the case between the trade unions FNV and CNV and the Temper platform, the Court of Appeal ruled that workers carrying out work via the Temper platform qualify as agency workers. Temper therefore qualifies as a temporary employment agency. This marks another milestone in the series of court rulings on platform work and sends a clear signal to (temporary) employers who make use of platform workers. Temper is an online platform where workers and clients can connect and agree on the work to be carried out. Temper presents itself as a neutral intermediary: a digital marketplace where self-employed people (freelancers) can secure assignments from companies that need extra help on a temporary basis. FNV and CNV took the following position. In their opinion there is a temporary employment contract between Temper and the Temper workers as referred to in Article 7:690 of the Dutch Civil Code. The workers were not ‘genuine entrepreneurs’, but agency workers, with all the legal consequences that entails. What is the court’s ruling? Contrary to the ruling of the Amsterdam District Court, the Court of Appeal has concluded that a temporary employment contract exists between Temper and a worker, as a result of which Temper qualifies as a temporary employment agency. The Court of Appeal reaches this conclusion by applying the criteria set out in the Supreme Court’s Deliveroo judgment. In doing so, the Court of Appeal considers that Temper is closely involved in the establishment of the contractual triangular relationship between Temper, the worker and the client. Temper is also closely involved in how remuneration is determined, how it is paid out and the amount of the remuneration. Given this degree of involvement, Temper – according to the Court of Appeal – cannot be characterised as a mere intermediary platform. The Court of Appeal also ruled that the workers run no (substantial) commercial risk with regard to the question of whether the workers act as entrepreneurs in the course of economic activity. The Court of Appeal considers that there is no evidence to suggest that a significant number of workers have made ‘substantial investments’, given that the list of Temper’s top 25 clients shows that these roles involve work for which no investment is required. The number of workers who are not registered with the Chamber of Commerce, and the fact that entrepreneurship – which is aimed at making a profit – is incompatible with an average hourly rate of €20.78, mean that Temper’s defence does not hold up with regard to these Deliveroo criteria either. All in all, the working relationship is characterised predominantly by factors relating to employment agreement and not – or at least to a much lesser extent – by factors indicative of genuine entrepreneurship. What does this mean in practice? The Temper ruling is the latest in a series of platform rulings following those on Deliveroo and Uber, and once again demonstrates that the actual working situation is of decisive importance. This applies not only to the traditional employer-employee relationship, but also to triangular arrangements such as this one. For Temper and similar platforms, being classified as a temporary employment agency has far-reaching consequences under employment law. As a temporary employment agency, Temper must comply with the Waadi and the collective agreement for temporary workers, as well as ensure pension accrual via StiPP. Contact Do you have any questions about the classification of your employment relationships with platform workers or about the implications of the Temper ruling for your organisation? If so, please contact Lisa van Baarsel, Dunia Caillette or one of our other employment law 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.