The Privacy Collective’s class action against Oracle and Salesforce
Proceedings in the fact-finding instances
TPC accused Oracle and Salesforce of collecting and processing the personal data of ten million Dutch internet users for commercial purposes. TPC claimed damages totalling € 10 billion (€ 5 billion each) from Oracle and Salesforce, or at least EUR 500 per internet user, in tort and under Article 82 of the General Data Protection Regulation (GDPR). This privacy class action is governed by Article 3:305a of the Dutch Civil Code (DCC) (Act on Redress of Mass Damages in a Collective Action, Wet afwikkeling massaschade in collectieve actie, WAMCA). The Amsterdam District Court found that TPC lacked standing to bring the action, because it did not meet the representativeness requirement. On appeal, however, the Amsterdam Court of Appeal held that TPC did have standing. We discussed that judgment in an earlier News Update. The Court of Appeal subsequently granted leave for an interim appeal in cassation, which Oracle and Salesforce duly pursued.
The Supreme Court on the representativeness requirement
The WAMCA introduced a new admissibility requirement: an interest organisation must be sufficiently representative taking into account its support base and the volume of the claims it represents. According to the Supreme Court, a key consideration is whether the interest organisation has the support of a sufficiently large proportion of the total group of people it represents. After all, these people will be bound by the court’s judgment (unless they opt out in good time).
What constitutes a “sufficiently large” proportion will depend on the circumstances. The legislative history indicates that relevant factors will include the number of members affiliated with an interest organisation or the number of people who have actively registered for the class action. However, in the Supreme Court’s view, neither membership nor active registration is a prerequisite for establishing sufficient support. If the individuals affiliated with an interest organisation form a balanced reflection of the total group it represents, then, according to the Supreme Court, it is logical to infer that the class action also has the support of a sufficiently large proportion of the total group.
The judgment of the Amsterdam Court of Appeal did not meet this standard. It had applied an unduly low threshold by holding it sufficient that “there is a support base, meaning that a not insignificant number of people belonging to that (…) group support TPC’s action”. Furthermore, the Court of Appeal had based its ruling on the fact that TPC’s website had received ‘likes’, without examining whether those ‘likes’ were anonymous and whether they could be attributed to individuals on whose behalf the class action was being brought. The Court was, however, right to take into account expressions of support from other interest organisations in its assessment of representativeness.
Supreme Court recognises exception to the referral prohibition
Under established case law, once an appellate court has set aside a final judgment, it may not refer the case back to the court of first instance unless, for purely procedural reasons, the court of first instance did not consider the substance of the case. This exception applies in only a limited number of cases. According to the Supreme Court, the exception encompasses class actions because, under WAMCA, class action proceedings are divided into an admissibility phase and a substantive phase. A Court of Appeal which, unlike the District Court, holds that an interest organisation has standing may refer the case back to the same court. This also applies to the proceedings after cassation and referral. If several interest organisations have brought a collective claim, and the court of first instance has reached differing rulings on their standing, it must stay the proceedings at first instance and defer the appointment of an exclusive representative until a final decision has been taken on the standing of the appellant interest organisation(s) in question.
Continuation of the proceedings; examination ex nunc
The Supreme Court set aside the Amsterdam Court of Appeal’s judgment and referred the case to The Hague Court of Appeal for further handling and decision. The latter will have to reassess TPC’s representativeness. It must also determine whether the claim for compensation for material damage meets the similarity requirement; the Amsterdam Court of Appeal had wrongly failed to address this issue. The Supreme Court also held that the court must assess the admissibility requirements ex nunc, that is, in light of the situation at the time of its decision. In the event that The Hague Court of Appeal rules that TPC has standing, and no interim appeal in cassation is permitted, the case must be referred back to the Amsterdam District Court.
During the substantive phase, the question will then arise as to whether the mandate requirement under Article 80(1) GDPR precludes a WAMCA damages action (conducted on an opt-out basis). The Amsterdam Court of Appeal had not yet considered this question. According to the Supreme Court, the WAMCA does not prevent deferral of the admissibility assessment under Article 80 GDPR. Incidentally, the answer will depend on the outcome of the preliminary ruling proceedings before the Court of Justice of the European Union (CJEU) in Amazon (C-523/25).
Privacy and data protection claims; class action brought by SOMI against X
The number of damages class actions relating to privacy and data protection has risen dramatically in the Netherlands in recent years, particularly against large technology companies. Many of these actions mirror similar proceedings originating in the United States and are increasingly being replicated in various EU Member States. This development has been facilitated by Directive 2020/1828 on representative actions (the RAD). Under the RAD, an interest organisation may be designated by the Member State in which it is established as a ‘qualified entity for cross-border actions’. A court in another Member State must presume that such an interest organisation has standing, and can only assess whether the action itself meets the requirements for admissibility.
The Netherlands now has nine ‘qualified entities’. It is telling that five of them are dedicated specifically to the protection of privacy interests, while a sixth entity with a broader remit has also brought a privacy class action in the Netherlands and thus likewise appears to be focusing on this area.
One of these ‘qualified entities’ is the Foundation for Market Information Research (SOMI). It has brought privacy class actions in the Netherlands against several big tech companies, and has initiated similar class actions in Belgium, Germany, France, Italy and Denmark.
In the recent interim judgment SOMI v X, the Amsterdam District Court held that SOMI met the requirement of standing in relation to its organisation, as it had been designated as a qualified entity and no new facts had been presented that would justify a different conclusion. The District Court did, however, express doubts as to whether SOMI sufficiently safeguarded the interests of its support base. At the hearing, it emerged that the funding arrangements covered not only the proceedings against X but also SOMI’s other actions in the Netherlands and elsewhere in the EU. The District Court requested further information from SOMI regarding both the extent of the financial resources and the degree of control it retained over the class action vis-à-vis the funders.
Supreme Court 17 July 2026, ECLI:NL:HR:2026:1198 (in Dutch)
Amsterdam District Court 27 May 2026, ECLI:NL:RBAMS:2026:6440 (in Dutch)
Class action brought by Stichting Elco Foundation against Rabobank and other banks
Proceedings in the fact-finding instances
Stichting Elco Foundation (the Foundation) accused a number of banks of having unlawfully manipulated benchmark interest rates, thereby infringing competition law (Article 101 of the Treaty on the Functioning of the European Union (TFEU)). As this class action was governed by the former Article 3:305a DCC, the Foundation was not seeking damages but solely declaratory judgments. The Amsterdam District Court found that the Foundation lacked standing to bring the class action, since it was not evident that the action could achieve effective and/or efficient legal protection. The Court reasoned that, as the declaratory judgments sought concerned the unlawfulness of interest-rate benchmark manipulation in general, the question whether unlawful conduct had occurred vis-à-vis members of the support base would still have to be determined on an individual basis. On appeal, the Amsterdam Court of Appeal set aside the judgment and ruled that the Foundation did, for the most part, have standing.
These proceedings also raise issues of international jurisdiction under Article 8(1) of the Brussels Ia Regulation (close connection between the claims) as well as pursuant to Article 6(1) of the EVEX II Regulation and Article 7(1) of the Dutch Code of Civil Procedure. The District Court and the Court of Appeal had declined jurisdiction in respect of certain claims.
Both the Foundation and the banks lodged appeals before the Supreme Court.
The Supreme Court on international jurisdiction
In adjudicating the Foundation’s appeal in cassation, the Supreme Court held that, for ‘the same situation of law’ to be deemed to exist within the meaning of Article 8(1) of the Brussels Ia Regulation, it was not necessary for the claims against the various respondents to be governed by (virtually) the same substantive law or to share the same legal basis. In finding that the claim based on group liability did not concern the same situation of law, as it was not plausible that the claims were governed by (essentially) the same or comparable substantive legal standards, the Court of Appeal did not fail to appreciate the criterion in question.
According to the Supreme Court, when assessing whether ‘the same situation of law’ exists, the court must take into account all the relevant circumstances of the case, including the arguments put forward by the parties. In doing so, the court may confine itself to assessing whether the law governing the claims and the content of the applicable foreign law can be plausibly determined.
In adjudicating the banks’ appeal in cassation, the Supreme Court held – in line with the judgment of the Court of Justice of the European Union of 16 April 2026, ECLI:EU:C:2026:293 – that foreseeability is not an independent criterion in the application of Article 8(1) of the Brussels Ia Regulation, but a general principle that must be taken into account when applying that provision. That principle is satisfied, in particular, when the situations in which claims are ‘so closely connected’ are generally foreseeable for a respondent. The Court of Appeal had therefore not erred in finding that participants in the JPY LIBOR panel must have been able to foresee that they could be sued in the courts for the place where another panel bank was domiciled.
The Supreme Court then ruled that the different legal approaches of the claims against the various defendants did not preclude the conclusion that they concerned ‘the same situation of law’, since, in order to assess these claims, it would first be necessary to determine whether there was an infringement of Article 101 TFEU.
The Supreme Court on similarity
In deciding the banks’ appeal in cassation, the Supreme Court also held that a claim seeking a declaratory judgment regarding unlawful conduct – without addressing the specific circumstances of individual cases – can contribute to efficient and effective legal protection as envisaged by Article 3:305a (old) DCC. After all, such a general finding of unlawfulness can serve as a starting point in subsequent proceedings. The fact that claims may be governed by different legal systems does not prevent interests from being pursued collectively.
Continuation of the proceedings; exception to the referral prohibition
The Supreme Court dismissed the appeals in cassation of both the Foundation and the banks. This means that the case will be handled further by the Amsterdam Court of Appeal. However, that Court of Appeal had already referred the case back to the Amsterdam District Court. In deciding the Foundation’s appeal in cassation, the Supreme Court ruled that the Amsterdam Court of Appeal was permitted to do so. The exception to the referral prohibition that applies in WAMCA proceedings (Supreme Court 17 July 2026, ECLI:NL:HR:2026:1198) also applies to class actions brought under Article 3:305a of the Dutch Civil Code (old).
Supreme Court 17 July 2026, ECLI:NL:HR:2026:1196 (in Dutch)
Supreme Court 17 July 2026, ECLI:NL:HR:2026:1197 (in Dutch)