Claim against pharmaceutical company admissible as public interest action

The Amsterdam District Court recently issued an important judgment in a class action against AbbVie. Based on grounds including alleged abuse of dominance, the Court assumed jurisdiction and declared the claim for declaratory relief a public interest action and as such admissible. The qualification as a public interest action is noteworthy in light of The Hague District Court's ruling in the Sinti, Roma and Travellers case.

Background and claims

AbbVie markets a rheumatoid arthritis drug under the name Humira. AbbVie was the patent holder. According to the Pharmaceutical Accountability Foundation (PAF), AbbVie charges too high a price for Humira. In PAF's view, an unfairly high price leads to the displacement of statutorily insured basic care, making other care inaccessible to insured people. PAF is therefore defending the interests of all persons who may be entitled to statutorily insured basic care in the Netherlands. It seeks a declaratory judgment that AbbVie acted unlawfully towards this group by violating various human rights and by abusing its dominant position (Article 102 Treaty on the Functioning of the European Union and/or Article 24 Dutch Competition Act (Mededingingswet)). 

International jurisdiction

PAF had sued three AbbVie entities: one Dutch ('AbbVie NL'), one US ('AbbVie US') and one German ('AbbVie Deutschland'). The Amsterdam District Court's jurisdiction over AbbVie NL was not at issue. However, the question was whether the Court had jurisdiction over AbbVie US and AbbVie Deutschland under Article 7(1) Dutch Code of Civil Procedure (DCCP) and Article 8(1) Brussels I bis, respectively. Jurisdiction can be assumed under these provisions if – in short – there is such a close connection between the claims that they must be dealt with jointly. For this assessment, the Court drew on the competition law concept of 'a single undertaking', as this is an important ground for PAFs claims.

The Court considered that AbbVie US is the indirect parent company of AbbVie NL. In light of the European Court of Justice's settled case law, the Court found it plausible in the context of determining jurisdiction that AbbVie US and Abbvie NL form a single economic unit and therefore a single undertaking. AbbVie US indirectly holds 100% of AbbVie NL's capital, so it is presumed to have had decisive influence over its subsidiary. AbbVie had neither rebutted this presumption nor refuted that AbbVie US is responsible for the pricing policy. Moreover, the Court found that the claims against AbbVie NL and AbbVie US were related and that joint assessment of the claims was justified. The Amsterdam District Court therefore assumed jurisdiction over AbbVie US.

The Court did not assume jurisdiction over AbbVie Deutschland. PAF had not submitted sufficient facts and circumstances regarding the concrete link between the activities, role and position of AbbVie Deutschland and the other entity's alleged anti-competitive behaviour with regard to Humira's pricing on the Dutch market. It thereby failed to meet the requirements of the Sumal judgment. The fact that AbbVie Deutschland belongs to the same corporate group as the other defendants was insufficient. Furthermore, PAF had insufficiently argued that AbbVie Deutschland and AbbVie NL form a single economic unit. Therefore, a close connection between the claims against these entities within the meaning of Article 8(1) Brussels I bis was missing. The Court could not assume jurisdiction under Article 7(2) Brussels I bis (concerning the place where the harmful event occurred) either, because PAF had failed to state sufficient facts and circumstances from which it could be inferred what conduct AbbVie Deutschland engaged in in the Netherlands or what conduct of AbbVie Deutschland caused damage in the Netherlands.

Admissibility

The Court then assessed PAF's standing and the admissibility of the claims under Article 3:305a DCC and Article 1018c(5) DCCP. The Court found that, in view of PAF's statutory objectives, the description of the class, and the nature of the claims, which were not for money, the class action was brought in the public interest. Therefore, several requirements regarding governance, control of the claim, and sufficiency of the funds available to conduct the proceedings, did not apply. 

This conclusion differs from that in the Sinti, Roma and Travellers case, in which The Hague District Court decided not to apply the ‘light’ admissibility regime because of the possibility of bringing damages actions based on the claimed (and possibly to be granted) declaration of law that unlawful action had been taken against the class.

The Court found that PAF had standing to bring its claims against AbbVie NL and AbbVie US. PAF met the representativeness requirement. Due to the qualification as a public interest action, the Court considered it significant that PAF had filed a complaint with the Netherlands Authority for Consumers and Markets, discussed the matter with the legislature and various stakeholders in healthcare, published on the subject, appeared in the media and held lectures at universities. The Court found it irrelevant how many individuals or organisations had expressed their support.

The Court rejected the defence that this was a political matter that could not be decided by the civil court. PAF sought a ruling on Humira's pricing. It was not seeking an order setting a pricing standard for patented drugs in general. The claims were therefore not prima face unfounded.

The proceedings will now continue on the merits.