Green bonds and sustainability-linked loans: sustainable financing in practice

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 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.

The Netherlands Authority for Consumers and Markets (ACM) has recently issued a clear call to companies in the food sector: review and improve your sustainability claims. This call is not optional. The ACM emphasizes that it will actively monitor compliance with the rules and, if necessary, take enforcement action. What does this mean for companies in the food sector? Why this call? Sustainability claims are playing an increasingly significant role in the marketing of food products. Consumers want to make informed choices and consider sustainability in their purchasing decisions. However, the ACM has observed that many claims in the food sector are unclear. This not only undermines consumer trust but can also lead to unfair competition among companies. For example, the ACM notes that it is often unclear what labels, logos, and certifications represent or what a sustainability claim specifically entails. The ACM has previously scrutinized sustainability claims in other sectors, such as clothing, energy, and transportation. Now, it is the food sector’s turn. The Sustainability Claims Guidelines: the basis for compliance The ACM directs companies to its updated Sustainability Claims Guidelines (2023). These guidelines outline five key rules that sustainability claims must adhere to: Use clear, specific, and complete sustainability claims; Substantiate sustainability claims with facts and keep them up to date; Make fair comparisons with other products or competitors; Describe future sustainability ambitions in concrete and measurable terms; Ensure that visual claims and certifications are helpful and not misleading. What’s at stake? The ACM has announced that it will actively check whether companies have adjusted their sustainability claims following this call. If claims do not comply, the ACM has stated that it may take enforcement action. Companies using sustainability claims that do not meet the Sustainability Claims Guidelines may face fines or orders subject to penalty payments. What can your company do? To avoid risks and ensure compliance with the law, it is essential for companies to take action now. A few practical tips: Inventory Your Sustainability Claims. Map out all the claims you use on products, in advertisements, and in stores; Assess Your Claims Against the Sustainability Claims Guidelines. Verify whether your claims comply with the ACM’s five key rules as outlined in the Sustainability Claims Guidelines; Collaborate with Experts. Have your claims reviewed both legally and substantively by specialists. This can help identify and mitigate risks; Communicate Transparently. Ensure that your claims are understandable to consumers and supported by clear information; Stay Up-to-Date. Closely monitor developments in laws and regulations regarding sustainability claims. Conclusion The ACM’s call is a clear warning to the food sector: ensure that your sustainability claims are honest, clear, and substantiated. If not, the ACM may proceed with enforcement. Do you need assistance in reviewing or adjusting your sustainability claims? We are happy to help you mitigate risks and bring your claims into compliance with the law. Feel free to contact Arnout Koeman or one of our other specialists.

On 14 March 2025, the Dutch Supreme Court (‘Hoge Raad’) issued an important ruling in the context of the Act on the Resolution of Mass Claims in Collective Actions (“WAMCA”) (ECLI:NL:HR:2025:388). One of the key questions the Supreme Court addressed was whether an extension of the so-called three-month period for serving a writ of summons, pursuant to Article 1018d(2) of the Dutch Code of Civil Procedure (“Rv”), has general effect or applies only to the legal entity that requested the extension. The Supreme Court’s decision is clear: an extension of the three-month period does not have general effect—it applies only to the legal entity that requested it. Background of the Case The case concerns collective claims brought by various foundations against Apple. Apple was summoned on October 4, 2021, by the Right to Consumer Justice Foundation (“Stichting RCJ”). Pursuant to Article 1018d(1) Rv, other foundations wishing to file a similar collective claim had three months to do so – until January 4, 2022, in this case. Article 1018d(2) Rv provides that a court may extend this three-month period upon request by another legal entity seeking to initiate collective proceedings. In this case, the court granted an extension of three additional months at the request of another foundation, the App Stores Claims Foundation (“Stichting ASC”), extending the deadline to April 4, 2022. This procedural decision was published in the central register for collective claims on November 29, 2021. Stichting ASC summoned Apple within this extended period. Another foundation, the Consumer Competition Claims Foundation (“Stichting CCC”), also summoned Apple within the extended period – on March 31, 2022. However, this meant that Stichting CCC had issued its writ of summons outside the original three-month period. The question in the proceedings was whether Stichting CCC could be deemed admissible in its collective claims, given that its summons was served after the initial three-month period had expired. At first instance, the court declared Stichting CCC inadmissible because it had not served its writ of summons within the statutory three-month period. The court ruled that an extension of the period under Article 1018d(2) Rv does not have general effect—the extension granted to Stichting ASC applied only to Stichting ASC. Stichting CCC disagreed and an appeal was files directly with the Supreme Court (‘sprongcassatie’). Supreme Court Decision The Supreme Court upheld the lower court’s ruling. It confirmed that an extension of the three-month period under Article 1018d(2) Rv does not have general effect. The Supreme Court noted that, according to the legislative history of the WAMCA, a court’s decision on an extension request must be tailored to the specific circumstances of the legal entity making the request. This, according to the Supreme Court, implies that an extension applies solely to the requesting legal entity and does not have a general effect. The Supreme Court also pointed out that this interpretation aligns with the absence of a requirement for extension decisions to be registered in the central register for collective claims. Conclusion For foundations seeking to initiate similar collective claims, it is crucial to closely monitor the collective claims published in the central register for collective claims. While it is understandable that Stichting CCC also considered the court’s procedural decision granting an extension to Stichting ASC, the publication of a summary of the initial summons in the central register remains decisive for determining the start of the three-month period. If an organization needs more than three months to prepare its case, it must submit a reasoned request for an extension of the three-month period to the court within one month. Organizations cannot rely on procedural decisions regarding extensions granted to other foundations that may be published in the central register for collective claims. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.

On 8 January 2025, the District Court of Midden-Nederland gave judgment in the ‘Essure case’ (ECLI:NL:RBMNE:2025:10). Drug manufacturer Bayer marketed a permanent sterilisation method for women called ‘Essure’, which had to be implanted on the fallopian tubes. The Essure Claims Foundation (‘Foundation’) brought a mass tort action against Bayer. The Foundation claimed that many women became seriously ill from this sterilisation implant. In its judgment, the court ruled on a number of formal points regarding, among other things, the applicability of the WAMCA and the admissibility of the Foundation in the proceedings. The court ruled in favour of the Foundation on all points. Below, we highlight some noteworthy points of the judgment. Temporal application of the WAMCA: no cut-off The WAMCA applies to collective actions that (i) are brought after the WAMCA came into force on 1 January 2020 and (ii) relate to events that took place on or after 15 November 2016. Bayer believes there should be a cut-off in the claims of the Foundation. Bayer argues that with regard to implants placed before 15 November 2016, the old statutory regime (WCAM) should be applied; only with regard to implants placed on or after 15 November 2016 should the WAMCA be applied. The court is of another opinion. The court considers that there is a series of events, as the women have in common that they all had the Essure implanted, but at a different point in time. According to the court, this series of events consists of the same, repetitive event that caused the alleged harm to several individual women who belong to the circle of persons whose interests the collective claim seeks to protect. This series of events did not end until after 15 November 2016. Therefore, the court concluded that the WAMCA applies to all of the Foundation’s claims. The claims for material and non-material damage can be bundled An foundation who can start a mass-litigation case under the WAMCA can only bring an action if it seeks to protect similar interests of the persons involved. This similarity requirement is met if these interests lend themselves to bundling. As a result, the special circumstances of the individual parties need not be considered in the proceedings. In addition to material damages, the Foundation also claims immaterial damages for the women who had Essure surgically removed. The Foundation divided the women into 17 categories and claimed a lump sum of damages for each category. Bayer takes the view that the claims cannot be bundled in this case, as according to Bayer, immaterial damages depend on individual facts and circumstances. In doing so, Bayer also relies on the Supreme Court’s ruling on earthquake damage in Groningen. In this judgment, the Supreme Court ruled that immaterial damage due to impairment of the person cannot be determined on a flat-rate basis, as this is not compatible with the highly personal nature of such damage. Again, the court is of another opinion. The court considers that, unlike in the aforementioned Supreme Court judgment, in the present case, immaterial damages are not claimed for personal impairment. In the present case, immaterial damages are claimed because the women suffered personal injury. As a result, according to the court, immaterial damages are even more logical than for an impairment in person. According to the court, it is not necessary that the women also suffered mental injury. The court concludes by considering that it is therefore possible that it may find that the immaterial damages suffered by the women are at least a certain (lump sum) amount. The court concludes that the Foundation’s claim for compensation for both material and immaterial damages are bundleable. Thus, the Foundation is admissible in all its claims, including those relating to the immaterial damages. Litigation funder’s fee of 28.75% is not unreasonable In the context of the admissibility of the Foundation, it must be assessed whether or not the litigation funder’s fee is prima facie unreasonable. The amount of the litigation funder’s fee should not be such as to disadvantage the women or provide an unacceptable incentive for the litigation funder to push for an adverse outcome for the women. It has been agreed with the litigation funder that it will receive 25% of the potential damages. In addition, it has been agreed that the litigation funder may charge all its incurred costs up to a maximum of 5% on the potential damages. This therefore means that a minimum of (95% minus 25% =) 71.25% of the damages will accrue to the women; the litigation funder can therefore potentially receive 28.75% of the damages. Dutch case law states that a range of 10 to 25% can be considered the maximum fee for a litigation funder. The court finds that the Foundation has sufficiently substantiated why a fee of more than 25% is reasonable. The Foundation has substantiated that it intends to recover the costs of the proceedings from Bayer by means of an actual litigation cost order or an equal agreement in a settlement. The Foundation has further argued that it is still uncertain what costs will be eligible for reimbursement through a (litigation) order or settlement. The amount of costs to be incurred is also still uncertain. In view of this, the court concludes that the Foundation has sufficiently substantiated that the agreed fee is not unreasonably high. Therefore, this does not pose an issue for the admissibility of the Foundation. Conclusion The Foundation’s victory shows that both the applicability of the WAMCA and the admissibility of foundations that are litigating under the WAMCA can be applied practically. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.

Introduction The Institute of Directors (IoD) recently published a new version of the Code of Conduct for Directors. The IoD is a British professional organization for company directors, senior business leaders, and entrepreneurs. Established in 1903, it is the longest-running organization for professional leaders in the UK. Approximately 75% of FTSE 100 companies have an IoD member on their board or in a senior management role. The voluntary Code of Conduct is described by the IoD as a practical tool to help directors make “better choices.” It represents a voluntary commitment by directors and their organizations to support and foster a positive organizational culture, ethics, and integrity. This article compares the IoD Code with the Dutch Corporate Governance Code 2022 (NCGC). The comparison focuses solely on relevant governance aspects related to ESG objectives. Comparison Sustainability and ESG (Environmental, Social, Governance) have become critical focus areas in corporate governance. As noted, we compare ESG-related guidelines from the NCGC and the IoD Code of Conduct for Directors 2024 (IoD Code). Both codes provide governance frameworks but approach the subject from different cultural and legal contexts. The NCGC applies to Dutch listed companies and has a “comply or explain” character. The IoD Code, on the other hand, is voluntary for directors and organizations affiliated with the IoD. 1. Sustainable Value Creation The NCGC emphasizes the importance of long-term sustainable value creation (Chapter 1.1). Directors are expected to develop strategies that consider social and environmental impacts, based on “People, Planet, Profit.” It highlights double materiality: how the company influences sustainability and how sustainability influences the company. The IoD Code addresses the principle of Responsible Business. It encourages directors to integrate ethical and sustainable business practices into their decision-making, with explicit attention to broader societal and environmental impacts. Comparison Both codes stress the importance of sustainability, but the NCGC includes more specific requirements, such as mandatory reporting on sustainability effects. The IoD Code is less detailed but strongly focuses on ethical behavior by directors. 2. Risk Management and Governance The NCGC extensively addresses risk management, including identifying ESG-related risks such as climate change and social inequality. Directors are required to implement adequate internal control systems and evaluate them regularly. In the IoD Code, risk management is embedded within broader principles of responsibility and transparency. Directors are encouraged to manage risks responsibly and to avoid prioritizing short-term shareholder profits over long-term resilience. Comparison The NCGC offers more concrete guidelines on managing ESG risks, while the IoD Code emphasizes ethical principles that influence risk management. 3. Stakeholder Engagement The NCGC explicitly requires companies to develop policies for effective dialogue with stakeholders, including the involvement of employees in decision-making. The IoD Code highlights the importance of transparency and open communication with stakeholders, including mechanisms such as speak-up policies to report misconduct. Comparison While both codes value stakeholder engagement, the NCGC places more emphasis on structured and strategic dialogue, whereas the IoD Code focuses more on ethical behavior and transparency. 4. Diversity and Inclusion The NCGC mandates a diversity policy with concrete goals for gender equality and other diversity aspects. In the IoD Code, diversity is addressed under the principle of Fairness. Directors are encouraged to promote inclusive cultures where everyone feels valued. Comparison The NCGC provides stricter and measurable guidelines for diversity, while the IoD Code adopts a broader behavioral approach. Conclusion Both codes emphasize the importance of ESG principles in governance but approach the subject differently. The NCGC offers detailed, legally anchored guidelines focusing on implementation and reporting. The IoD Code, on the other hand, centers on the behavior and ethics of individual directors. Together, these codes provide valuable frameworks to support directors in fostering sustainable and responsible enterprises. If you would like to know more about good governance and ESG, feel free to contact Patrycja Chelmiak.