Commercial Litigation

European Court of Justice: actio pauliana is covered by jurisdiction rule of forum of contract. A judgment with foreseeable consequences?

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Imagine that a debtor voluntarily concludes a transaction with a third party where he knows (or should know) that it hinders the creditor’s possibilities of collecting the debt. In civil law countries, a creditor can invoke the nullification of that legal act by means of a so-called actio pauliana. This raises the question of which court has jurisdiction in the … Read more

European Parliament votes in favour of representative actions for the protection of collective interests of consumers

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On 26 March 2019 the European Parliament approved an amended version of the European Commission’s proposal for a Directive on representative actions for the protection of collective interests of consumers, following a debate on 25 March 2019. The Directive will become law once the Council and the European Parliament reach an agreement on the European Commission’s proposal. The Council has … Read more

Amended governance rules addressing third party funding for collective claim organizations

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On 4 March 2019, an amended version of the Dutch “Claimcode” was published. The Claimcode is an instrument of self-regulation, created by parties who are active on the claims market. Like the 2011 original, the 2019 Claimcode contains guidelines for the governance of organizations that pursue collective claims and settlements, aiming to ensure that claim organizations put the interests of … Read more

Legislative proposal on mass damages claims approved by the Dutch Senate

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On 19 March 2019, the Dutch Senate approved the legislative proposal that introduces collective actions for damages under article 3:305a of the Dutch Civil Code (DCC). As the legislative proposal did not give rise to any debate in the Senate, it was passed without a vote. The legislative proposal will have a significant impact on the litigation climate in the … Read more

European Court of Justice issues landmark ruling on parental liability

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On 14 March the European Court of Justice issued a landmark judgment in the Skanska case. In this ruling, the Court of Justice held that parent companies can be held liable for the damage caused by a competition infringement committed by their subsidiary if the parent company (that holds all the shares in the subsidiary) has dissolved the subsidiary but continued … Read more

European Court of Justice resolves – Peeters/Gatzen claim falls within the scope of Regulation (EU) 1215/2012 (Brussels I recast) instead of Regulation (EU) 2015/848 (Insolvency Regulation)

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On 6 February 2019, the European Court of Justice (“CJEU“) ruled that the Peeters/Gatzen claim falls within the scope of Regulation Brussels I (recast) (Regulation (EU) 1215/2012) (“Brussels I“) and therefore the Regulation on Insolvency Proceedings (Regulation (EU) 2015/848) (“Insolvency Regulation“) does not apply (ECLI:EU:C:2019:96). This ruling provides an answer to the preliminary questions asked by the Dutch Supreme Court … Read more

Lifting attachments on assets of international organisations in another state – preliminary questions regarding jurisdiction and immunity

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Are Dutch courts entitled to lift a prejudgment attachment levied against an international organisation on its assets in another state? On 22 February 2019, the Dutch Supreme Court submitted preliminary questions to the Court of Justice of the European Union concerning this issue (ECLI:NL:HR:2019:292). In essence, the preliminary questions ask whether courts in one state are entitled to rule on … Read more

Does selling a phone on an online marketplace make you a “trader” under the Unfair Commercial Practices Directive and the Consumer Rights Directive?

Online marketplaces provide sales channels not only for professional traders but also for individuals selling second-hand goods. For buyers, online advertisements do not always make it clear whether the seller is a professional trader or an individual. This distinction is important because consumers buying from a professional trader can benefit from EU consumer laws, while these protections do not apply … Read more

Follow-on cartel damages claim dismissed: don’t bury courts under paper work

A recent ruling by the Dutch Court of Appeal confirmed that claimants will need to sufficiently substantiate their claim that they suffered loss due to a cartel, even in follow-on cases. Despite a presumption that sales or service contracts concluded during the cartel period have been affected by the cartel, claimants will still need to provide the courts with concrete, … Read more