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Regulation of payment services under PSD2

O&F, 1-4-2018

The revised Payment Services Directive was due to be transposed into Dutch law on January 13, 2018. This directive is better known as "PSD II." Much has already been said and written about PSD II, and not only in legal literature. For example, the FD recently reported that with the implementation deadline approaching, the "battle" between banks and FinTechs is nearing its climax. Service providers other than banks, such as startups, FinTechs, and BigTechs like Alibaba, Amazon, Apple, and Google, could pose a significant threat to traditional banks thanks to PSD II.

Read more in the full article here.

HR 20-06-2025, ECLI:NL:HR:2025:945 (Truck cartel)

Below is a brief overview of (translations of) recent edits for 'Rechtspraak Aansprakelijkheids- en Verzekeringsrecht' by Jeroen. For more information, see: https://shop.wolterskluwer.nl/Rechtspraak-Aansprakelijkheids-en-Verzekeringsrecht-sNPRSKAHVR/#pdp-editors-authors

RAV 2025/82

Competition law. Cartel damages claims. Applicable law. Market rules. Preliminary questions.

Which law applies to follow-on claims, i.e., claims for damages resulting from a single and continuous infringement of the cartel prohibition under Article 101 TFEU and Article 53 of the EEA Agreement?

In 2016 and 2017, the European Commission imposed fines totaling approximately €3.81 billion on various truck manufacturers in two decisions for violations of the prohibition on cartels under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement. The reason for this was that, according to the European Commission, a cartel of truck manufacturers existed on the European truck market between 1997 and 2011. This was a so-called "single and continuous infringement." This means that all conduct constituting the infringement is considered a single whole, meaning that each undertaking is held (jointly) responsible for the conduct of the other undertakings during the infringement for the entire duration of its participation in the infringement. No distinction is required between individual conducts, and it is not necessary to establish that each of these conducts, considered individually and separately, qualifies as an infringement. In this case, the single and continuous infringement consisted of collusive price agreements between the manufacturers concerned on increases in the gross price of trucks within the European Economic Area (EEA), as well as on the timing and passing on of costs for the introduction of the emission technologies for trucks required by certain European standards.

The established infringement covered the entire EEA and lasted from January 17, 1997, to January 18, 2011. This led to a large number of cases brought before the Dutch courts by numerous parties claiming to have suffered damages as a result of the truck cartel. In some cases, the injured parties themselves acted as plaintiffs, but often the claims for damages were bundled, with a litigation or claims vehicle (and in one case, a parent or group company) acting as plaintiff.

In the various damages proceedings before the Amsterdam District Court, several thousand claimants are seeking compensation for the damage they claim to have suffered as a result of the aforementioned infringements. The Amsterdam District Court has attempted to consolidate the cases into four clusters of consolidated cases, each involving a maximum of approximately 200,000 trucks. For this cluster, the Amsterdam District Court has determined that the tort law forms the basis for the claims filed. In this case, the alleged damage was (only) suffered in most cases either when a surcharge was paid for the purchase (or rental/lease, etc.) of a truck, or when the surcharge was passed on to the customer of a transport service. Therefore, these are follow-on claims: civil actions filed after a competition authority has established unlawful conduct and imposed a decision or fine. In this case, it is undisputed that the plaintiffs' claims for compensation for cartel damage can be qualified as claims arising from tort, and in particular from unfair competition.

Due to the cross-border nature of the cases, a discussion subsequently arose regarding the applicable law to the follow-on claims. The core question is whether one or more legal systems can apply to the claims filed. This applicability depends on which conflict-of-law rules apply temporally to the damages claims: the Conflict of Laws in Tort Act (WOCD) or Regulation (EC) 864/2007 (the "Rome II Regulation").

This led the Amsterdam District Court to submit preliminary questions to the Supreme Court in an interlocutory judgment. The court deemed further clarification from the Supreme Court necessary regarding the application of Article 4 of the WOCD or Article 6, paragraph 3, of the Rome II Regulation, in particular. It is important to note that the WOCD entered into force on June 1, 2001. Before that date, the general Dutch conflict of laws regarding torts was unwritten law. Since the WCOD can be seen as a codification of the unwritten conflict of law rules that applied before it, the WCOD can also be applied to tortious obligations arising before 1 June 2001. The Rome II Regulation entered into force on 11 January 2009 and applies to damaging events occurring after the entry into force of the Regulation, i.e. to damaging events occurring on or after 11 January 2009. As of that date, the WCOD no longer applies in cases covered by the Rome II Regulation.

The court also deemed further clarification from the Supreme Court necessary regarding how the applicable law should subsequently be determined. Furthermore, the court requested clarification regarding the application of the competition law concept of "a single and continuous infringement," and specifically whether this concept should be interpreted as: (i) a (single and continuous) unlawful act giving rise to separate claims for damages per truck transaction, or (ii) a (single and continuous) damaging event resulting in a single claim for damages per injured party, consisting of various items of damage. In its referral judgment, the Amsterdam District Court emphasized the importance of clarity from the Supreme Court, given the large number of claimants and claims in the truck cartel cases.

HR 05-09-2025, ECLI:NL:HR:2025:1237

RAV 2025/92

Business lending. Bank duty of care. Warning obligations.

A dairy farm, operated as a partnership, entered into a credit agreement with a major bank in 2014 to expand its barn capacity and livestock. The partners were the father, mother, and later their son. The business loan was to be used for the construction of a new barn and the purchase of land to realize the expansion. The partners assumed that there would be room for growth after the abolition of the milk quota on April 1, 2015.

However, on January 1, 2018, the legislator introduced a phosphate rights system for the dairy sector, with a reference date of July 2, 2015, to generally achieve responsible growth in the dairy farming sector and to manage the sector's phosphate production through a system of land-based farming and manure processing. The previous milk quota system was abolished. This did not work out well for the dairy farm. On the reference date, July 2, 2015, the new barn was not yet ready, and therefore the expansion had not yet been realized. The phosphate rights granted to the dairy farm by decision of the Netherlands Enterprise Agency (RVO.nl) were calculated for the dairy farm based on the existing livestock population. This naturally hindered the expansion. The dairy farm subsequently filed an objection and appeal, but these were unsuccessful.

Ultimately, in 2019, the dairy farm took aim at the lender and filed claims with the Midden-Nederland District Court, seeking payment by the bank of an amount to be determined by the state as compensation for losses suffered due to an error in entering into the loan agreement, or damages for breach of the bank's duty of care. The court dismissed all claims. In an interlocutory judgment, the Arnhem-Leeuwarden Court of Appeal allowed the bank to provide rebuttal evidence to the assertion, initially considered plausible, that the bank failed to warn, prior to concluding the loan agreement, about the possible introduction of production-restricting measures such as the phosphate rights system, and the resulting risks to the dairy farm's operations and financial position.

In its appeal, the bank complains, among other things, that the Court of Appeal erred in law in its interpretation of the banking duty of care when providing loans to entrepreneurs, such as the partners of the dairy farm. According to the grounds for appeal, the Court of Appeal failed to recognize that the content and scope of that duty of care are limited in a case like that of the dairy farm, as a loan is not a complex financial product and the client is a business (and not a consumer). The bank also argues that the Court of Appeal failed to recognize that the possibility of legislation changing is a business risk.

District Court of Central Netherlands 31-12-2024, ECLI:NL:RBMNE:2024:7514

RAV 2025/38

Life insurance. Marital garnishment.

Should the life insurer, in accordance with Article 479kc of the Dutch Code of Civil Procedure, allow the policyholder's ex-partner to make fund changes under the life insurance policy as a beneficiary while it was subject to a marital third-party attachment?

A couple, consisting of the plaintiff and her ex-partner, were married in community of property. Part of the marital property regime was a life insurance policy in the form of an investment policy. According to the policy, the ex-partner was both the policyholder and the insured. The plaintiff was one of the (secondary) beneficiaries of the life insurance policy. As such, she was entitled to the payout upon the policy's maturity date, or an earlier payout in the event of premature death.

Over time, the marriage between the plaintiff and her partner was dissolved by divorce. In light of that divorce and fear of embezzlement of the life insurance policy, the plaintiff filed a marital garnishee order against the insurer on July 28, 2016. The court ruled that the life insurance policy should be split as part of the divorce, with the ex-partner and the plaintiff each receiving half of the value. The ex-partner then decided to sell several fund investments and place them in an interest-bearing fund. When the interest rate subsequently became (nearly) negative, the ex-partner exchanged the interest-bearing fund for investments in a biotech company. The price of these investments subsequently fell sharply.

The plaintiff states that the fund changes led to a significant reduction in the value of the life insurance policy (and its payments), meaning that she received less money after the divorce (than expected?) and therefore suffered damages.

The claimant argues that, given the marital attachment, the insurer should not have allowed her ex-partner to carry out the aforementioned fund transfers. According to the claimant, allowing the fund transfers would fall under the blocking effect of Article 479kc of the Dutch Code of Civil Procedure. Because the insurer failed to comply with this, it can be considered a pure debtor and can be held liable for damages due to non-performance under Article 477a, paragraph 4, of the Dutch Code of Civil Procedure, according to the claimant. With the same justification, the claimant also holds the insurer liable on the grounds of breach of contract under Article 6:74 of the Dutch Civil Code and on the grounds of tort under Article 6:162 of the Dutch Civil Code.

HR 04-10-2024, ECLI:NL:HR:2024:1384

RAV 2024/12

Directors' liability. Compensation. Mitigation authority.

What is the framework for assessment and the scope of the power to mitigate if the court wishes to refrain from awarding full damages?

This is a Caribbean case concerning the internal liability of two (former) directors towards the Curaçaoan legal entity of which they were directors. This legal entity, a foundation, was established in Curaçao and its purpose was to provide sickness benefits to the needy and the less fortunate, as well as (retired) government employees and their families. Between 2011 and 2013, the foundation spent several substantial sums on, among other things, a termination payment for a cooperation agreement, contracts with an accounting firm, and face masks that were never delivered.

The foundation filed several complaints against two directors, alleging financial irregularities, which generated considerable publicity in Curaçao. Ultimately, the foundation sought a declaration from the Court of First Instance of Curaçao that the directors were culpably negligent in the proper performance of their management duties as referred to in Article 2:14 of the Curaçao Civil Code, and that they were therefore liable for the damages suffered by the foundation. The foundation also sought joint and several damages against the directors. The Court ruled that the directors had acted in violation of the articles of association and were therefore liable for the damages suffered by the foundation, and granted a reduced amount for the damages claim.

On appeal, the Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and Bonaire, Sint Eustatius, and Saba issued an interlocutory judgment and subsequently upheld the General Court's judgment in a final judgment. In doing so, the Court considered a request for mitigation submitted by the directors pursuant to Article 6:109 of the Curaçao Civil Code. Based on the specific facts and circumstances, the Court set the final compensation payable by each of the directors at a significantly lower amount, with detailed reasoning. The Foundation is appealing this mitigation judgment in cassation.