Jurisdiction of Amsterdam District Court
In the action contesting jurisdiction (in Dutch) at first instance, the Amsterdam District Court ruled that it was competent to hear the claims of all organisations against all defendants. It based its competence regarding TikTok Ireland on Article 7(2) of the Brussels I bis Regulation. In the event of violations of personality rights, the harmful event occurs in the place where the person concerned has their centre of interests (according to the District Court in ground 5.17 of the interim judgment in the action contesting jurisdiction (in Dutch)). The District Court based its competence regarding the non-EU TikTok entities on Article 7(1) of the Dutch Code of Civil Procedure (connection). TikTok Ireland argued on appeal that the Amsterdam District Court only had international and territorial jurisdiction regarding damage that allegedly occurred in the district of Amsterdam. The rationale behind this was that Article 7(2) of the Brussels I bis Regulation – in contrast to Article 4 of that Regulation – not only determines in which Member State a court has jurisdiction, but also designates the court with territorial jurisdiction in a place in a Member State, based on a particularly close connection between the claim and the court for the place where the harmful event occurred or may occur. According to the Court of Appeal (ground 4.22.2), TikTok et al. were thus arguing that the organisations had to submit their claims against TikTok Ireland to all courts in the Netherlands that have jurisdiction at all times with regard to the users habitually resident in the district in question, after which the courts could refer those actions to the Amsterdam District Court. The Court of Appeal dismissed this defence with reference to the purpose and purport of WAMCA procedural law, in order to prevent unreasonable delay in the proceedings (Article 20(1) of the Dutch Code of Civil Procedure) and as contrary to due process. A striking detail is that the Court of Appeal invoked national law to limit the application of an EU-law jurisdiction rule, while preliminary ruling proceedings on this issue are pending before the CJEU (Apple).
Admissibility: claims for compensation for non-material damage
The Court of Appeal set aside the District Court’s decision in the admissibility phase (in Dutch) that claims seeking compensation for non-material damage did not lend themselves to being bundled (ground 4.31.1 et seq.) and therefore did not meet the similarity requirement of Article 3:305a(1) of the Dutch Civil Code. The Court of Appeal ruled that the claims for non-material (and material) damages are based on the same violations of standards and the same body of facts, meaning that every TikTok user’s case involves similar questions of law and events. The major differences that may exist among users do not alter this, and may be resolved by dividing them into categories. This ruling is consistent with a previous decision by the Amsterdam Court of Appeal in Oracle & Salesforce (in Dutch).
Other admissibility aspects
The Court of Appeal also made a number of interesting decisions regarding other WAMCA admissibility aspects. It did not concur with the District Court on the delineation of the group of persons for whom the collective action was brought (‘narrowly defined group’), the substance of the claims or the lack of standing regarding two defendants. We will confine ourselves to the first two aspects.
No temporal delineation of the narrowly defined group
In the admissibility phase (in Dutch), the Amsterdam District Court added, on its own initiative, a temporal delineation of the narrowly defined group (the date of the first interim judgment). An accurate delineation of this group is important because the persons concerned will be bound by the final judgment in the collective action. The Court of Appeal ruled that the necessity for a temporal delineation does not follow from the WAMCA’s text or system and is furthermore inconsistent with the WAMCA’s purpose. Users who create a TikTok account while the proceedings are pending can be assigned to a separate damage category.
Consolidation of collective claims and exclusive representative
With a view to the efficient and effective settlement of mass damage, a special feature of WAMCA proceedings is the consolidated examination of collective actions brought by various claim organisations if those actions pertain to the same event or events and to similar questions of fact and law. The court will select one or more claim organisations as the exclusive representative. They will represent the other claim organisations in the consolidated proceedings, which remain parties in those proceedings.
In the case at hand, two claim organisations had been designated by the Amsterdam District Court as the exclusive representatives for adult and underage TikTok users, respectively. The Court of Appeal held that this designation could not be appealed and that it applied, in principle, for the duration of the entire proceedings, until they conclude in a collective settlement or a final and conclusive judgment. This is consistent with the Supreme Court’s judgment in Clara Wichmann (in Dutch). The Court of Appeal also decided that the exclusive representative’s power of representation did not strip the other parties of their right to lodge an appeal. That would conflict with party autonomy.
The Court of Appeal went on to find that the consolidation of the collective claims did not eliminate their independent nature. Contrary to what the Amsterdam District Court had decided, defendants do not become parties in a collective action brought by an claim organisation that has not summoned them. In other words, claim organisations can only involve defendants in their appeal that they summoned at first instance.
Further course of the proceedings
The Court of Appeal will discuss the further course of the proceedings with the parties in a case management hearing. The hearing will focus on when a settlement could be attempted and whether the Court of Appeal will retain the case or refer it back to the District Court.