This text reflects the state of the law in the Netherlands as of 3 October 2022.
Collective Action – Case Law
The right of collective action was first accepted by the Dutch Supreme Court in case law in environmental (pollution) matters decades ago. The Supreme Court held that the interests involved in such claims are suitable to be bundled in an action brought by environmental associations on behalf of citizens. According to the Supreme Court, this would promote effective legal protection.
Collective Action – WCA
In 1994, this case law was codified and a more general basis for collective actions was provided by the Act on Collective Actions (Wet collective actie ‒ WCA). Pursuant to the WCA, a foundation or an association with full legal capacity (hereinafter also referred to as interest organisations) may bring a collective action seeking to protect similar interests of other persons. According to the legislator, interest organisations can, for example, bring a collective action when the interests at stake are small at the individual level, but considerable at the aggregate level. Also, the threshold for access to the courts was believed to be lower for interest organisations. Furthermore, collective actions were said to have a preventive effect. Finally, effectiveness reasons were also cited.
The WCA expressly excluded the possibility for an interest organisation to collectively claim monetary damages. Back then, the legislator believed that a court could only award monetary damages on the basis of an assessment in respect of each of the individual members of the group, whilst a collective action is conducted at the group level.
Collective Settlement – WCAM
In 2005, the Act on the Collective Settlement of Mass Damages (Wet collectieve afwikkeling massaschade‒ WCAM) was adopted. Pursuant to the WCAM, a foundation or association with full legal capacity that has reached a settlement for compensation of damages caused by an event or similar events may, together with the party that will pay the compensation, request the Amsterdam Court of Appeal to declare the settlement binding on all injured persons. The occasion for the introduction of the WCAM was the infamous DES Daugthers case, a medical product liability case in which such a settlement was reached and the pharmaceutical companies were looking for ways to make the settlement generally binding. Rather than adopting a tailor-made solution, the legislature adopted a general statutory framework that can be used for the quick and effective settlement of other mass damages claims as well.
Collective Action – WAMCA
In 2011, Parliament passed a motion noting that mass damages were often not compensated and calling on the government to introduce efficient and effective instruments in order to realise the fundamental right of consumers to claim damages. In that respect, the motion noted that the WCAM already provided for the collective settlement of mass damages pursuant to settlement, but that interest organisations were lacking the possibility to collectively claim monetary damages in the event the party causing the damage was not willing to enter into a settlement.
In 2020, the Act on the Resolution of Mass Damages in Collective Action (Wet afwikkeling massaschade in collectieve actie‒ WAMCA) entered into force. Pursuant to the WAMCA, interest organisations now also have the possibility to claim monetary damages in collective actions. The WAMCA also introduced safeguards in respect of transparency and the governance of interest organisations. By improving the quality of interest organisations, co-ordinating collective actions and by providing more finality, the WAMCA intends to provide incentives to settle mass damages.
Although the Dutch legislator has always been wary of the possible excesses in US-style litigation, both the WCAM and the WAMCA predominantly reflect elements of an American class action. Examples are the opt out basis (WCAM and WAMCA), the lead plaintiff (WAMCA), the Dutch law equivalent of a motion to dismiss (WAMCA), the possibility to declare the outcome generally binding (WCAM and WAMCA) and the incentives to reach a settlement (WAMCA). However, the WCAM and WAMCA remain distinct from American class actions. Especially the safeguards introduced by the WAMCA to protect the interests of the injured persons (eg, putting profit motives at arm’s length) have a European background.
One of the reasons for the introduction of the WAMCA was the 2013 Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms, which was duly taken into account by the Dutch legislature. Hence, the Dutch legislature is of the opinion that the WAMCA meets the requirements of Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers, and only needs amendment where the Directive gives supplementary rules in some specific cases. Also, the rules of the Directive on the designation and acceptance of qualified entities that can bring collective actions in consumer cases need implementation. On 25 May 2022, the House of Representatives adopted the implementing Act, which is now before the Senate.
The principal laws and regulations governing collective actions and settlements are the Dutch Civil Code (DCC) and Dutch Code of Civil Procedure (DCCP). The rules for collective actions are laid down in Sections 3:305a-3:305d DCC. With the entry into force of the WAMCA, additional rules have been laid down in Sections 1018b-1018m DCCP. Collective settlements are governed by the WCAM, which was laid down in Sections 7:907-7:910 DCC and Sections 1013-1018a DCCP.
In addition to this statutory framework, the so-called Claim Code could also be of relevance. The Claim Code is a governance code for interest organisations. The Claim Code intends to guarantee participants in collective actions that the board of such a foundation or association always puts the interests of the injured persons first. Before the entry into force of the WAMCA, courts often drew inspiration from the Claim Code’s seven comply-or-explain principles in respect of governance and third-party funding in their assessment of whether an interest organisation met the requirements for bringing a collective action. However, much of the Claim Code has been codified by the WAMCA, and it remains to be seen what the residual role (if any) of the Claim Code will be.
The substantive scope of both the WAMCA as well as the WCAM is unlimited. The principal laws and regulations governing collective actions and settlements apply to all areas of law, types of disputes and issues. A collective action can be brought in relation to any event that has affected the interests of the parties on behalf of whom the collective action is brought in a similar way. Those parties can be both natural persons as well as legal entities.
The temporal scope of the WAMCA is limited. The WAMCA does not apply to collective actions in relation to events that took place before 15 November 2016. However, for a series of events that took place both before and after 15 November 2016 that constitute a single and continuous tort, like a cartel, legislative history should be construed in such a way that the WAMCA applies to the entire series of events.
In order for a collective action to be admissible, the Dutch courts must have jurisdiction and the case must have a sufficiently close connection with the Dutch jurisdiction. The latter is the case if:
Under the WCAM, such requirements do not apply. In fact, the vast majority of the injured parties to which the Shell and Converium collective settlements related were not Dutch. This was also the case (although to a lesser extent) for the injured parties within the scope of the Fortis/Ageas collective settlement. In Converium, none of the potentially liable persons were Dutch and the event to which the collective settlement related did not take place in the Netherlands. Nonetheless, the Amsterdam Court of Appeal assumed jurisdiction and declared the collective settlement generally binding.
Pursuant to Section 3:305a of the DCC, a collective action is a legal action brought by a foundation or an association with full legal capacity, seeking to protect similar interests of other persons, provided that those interests are sufficiently safeguarded. On the relevant safeguards, see 4.3 Standing.
Pursuant to Section 7:907 of the DCC, a collective settlement is a settlement in respect of the compensation of damages caused by an event or similar events between a foundation or an association with full legal capacity on the one hand and a party that will pay the compensation on the other hand; it is declared binding on all injured persons.
Apart from collective actions, which can be brought before any competent District Court, and collective settlements, which can only be declared generally binding by the Amsterdam Court of Appeal, there are two other main mechanisms for collective redress, ie, the so-called assignment model and a bundled action on the basis of mandates/powers of attorney. These mechanisms are particularly used in cartel damages actions.
The Assignment Model
Under the assignment model, the injured parties first assign their claims to a special purpose vehicle (SPV), which then initiates the proceedings, as the owner of the claims, in its own name and for its own risk and account. Such claim can be brought before any competent District Court. Under the assignment model, the SPV assumes any and all costs related to the litigation and pays the injured parties a purchase price for the assignment of their claims, which is usually a percentage of the compensation recovered (if any) in the litigation.
Mandates/Powers of Attorney
In an action on the basis of mandates/powers of attorney, the injured parties do not assign their claims to the SPV, but rather give it a mandate or a power of attorney to pursue these claims on their behalf. The SPV then initiates the proceedings either in its own name (in the case of a mandate) or in the name of the injured parties (in the case of a power of attorney), but always for the risk and account of the injured parties. Such claims can be brought before any competent District Court. The SPV again assumes any and all costs related to the litigation and in case of success, the injured parties pay the SPV a percentage of the compensation recovered.
In two of the largest cartel damages actions that are currently pending in the Netherlands, the cartel damages claims filed against major global airlines (Air Cargo) and European truck manufacturers (Trucks), in which Brande & Verheij LLP represents different claimants, both the Amsterdam District Court and the Amsterdam Court of Appeal have confirmed that it is possible to conduct legal proceedings on the basis of the assignment model and/or mandates/powers of attorney. In these cases, purchasers of air freight services and trucks have assigned their claims to a foundation. In the Trucks case, the Amsterdam District Court also held that such an SPV does not have to comply with the safeguards introduced by the WAMCA (or the Claim Code). On the relevant safeguards, see 4.3 Standing.
Collective Action – WAMCA
The underlying idea of the WAMCA was to introduce a step-by-step procedure that would promote the settlement of mass damages. The statutory framework clearly reflects this by prescribing the following steps.
1. Before the collective action is brought, the interest organisation must have made sufficient efforts to realise the relief sought by conducting consultations with the defendant, in the absence of which the interest organisation will not be admissible in the collective action.
2. If these consultations are to no avail (which is usually the case), the interest organisation should issue a writ of summons detailing inter alia:
3. Within two days of the date of issue, the writ summons must be entered into the central register for collective actions (see Dutch site).
4. Within three months of the entry of the writ of summons in the central register, other interest organisations may bring a collective action for the event or events to which the initial collective action relates. Such consecutive collective action must be brought before the same District Court as the initial collective action, after which the collective actions will be consolidated. Upon request of another interest organisation, the court may extend this time limit by no more than three months.
5. The collective action will only be dealt with on its merits if and after the District Court has ruled that:
6. If more than one collective action has been brought and multiple interest organisations are admissible, the court will appoint an exclusive representative (the Dutch law equivalent of the American lead plaintiff), having regard to the size of the group of injured persons on whose behalf the interest organisation is acting, the size of the financial interests of that group, any other activities performed by the interest organisation for the injured persons and any previous activities performed or collective actions brought by the interest organisation.
7. Next, the District Court will determine the precise substance of the collective action and the narrowly defined group of injured persons whose interests the interest organisation is seeking to protect.
8. Dutch residents belonging to this narrowly defined group will then be given the possibility to opt-out in a period of at least one month after the announcement of the decisions referred to under 6 and 7 above. Non-Dutch residents belonging to this narrowly defined group will be given a similar period to opt-in, unless the District Court has decided that they will also be represented on an opt-out basis. If the number of injured persons who have opted out is too large, the District Court may decide not to move forward with the collective action. Otherwise, the outcome of the collective action will in principle be binding on all injured persons who opted-in or did not opt-out.
9. After the appointment of an exclusive representative, the District Court will set a period for testing a settlement.
10. If a settlement is reached, the settlement agreement must be submitted to the District Court for approval. Pursuant to the WAMCA, many provisions of the WCAM (on collective settlements) apply accordingly to the approval of a settlement agreement and (the announcement of) the approved settlement agreement under the WAMCA.
11. If the settlement agreement is approved, the persons belonging to the narrowly defined group will again be given the possibility to opt-out. The settlement agreement will in principle be binding on all injured persons who do not opt-out.
12. If no settlement is reached, the District Court will deal with the collective action on the merits. If the collective action concerns a claim for monetary damages, the District Court may, before establishing a collective compensation scheme, order the exclusive representative and the defendant to submit a proposal for a collective compensation scheme. The District Court must ensure that, where possible, the damages are assessed in categories and that the amount of the damages awarded is reasonable.
Collective Settlement – WCAM
Before a procedure on the basis of the WCAM can be initiated, a settlement needs to be reached between a foundation or an association with full legal capacity on the one hand and a party that will pay the compensation on the other hand. The WCAM is silent on the settlement process itself and only provides what the settlement agreement must contain in terms of (inter alia) the event or events to which the agreement relates, the group or groups of injured persons on whose behalf the settlement was concluded, and the number of persons belonging to this group or these groups.
The parties to the settlement agreement, ie, the interest organisation and the party that will pay the compensation, can then jointly request the Amsterdam Court of Appeal to declare the settlement binding on all injured persons.
To that end, all the injured persons on whose behalf the settlement was concluded must be summoned and informed of the possibility to raise objections against the settlement in the procedure on the basis of the WCAM.
After having established that the injured persons have been properly summoned, the Amsterdam Court of Appeal will then assess the settlement. The settlement will not be declared generally binding if (inter alia):
If the Amsterdam Court of Appeal declares the settlement generally binding, injured persons must be given the possibility to opt-out in a period of at least three months after the announcement of that decision. If (and to the extent) they have not opted out, the settlement will in principle be binding on all injured persons.
A particular feature of the WCAM is that upon the request to declare a settlement generally binding, any and all procedures relating to disputes the settlement agreement aims to end are stayed by operation of law until after the procedure on the basis of the WCAM.
The Assignment Model
There is no special procedure for actions on the basis of the assignment model or mandates/powers of attorney. Hence, such proceedings are, in principle, conducted like any other, albeit that the defendants usually raise specific defences as to the validity of the assignments, mandates and/or powers of attorney (although such defences are generally dismissed).
In practice, proceedings on the basis of the assignment model or mandates/powers of attorney tend to be so complex and voluminous that courts often decide in case management hearings on specific ad hoc regimes for the cases, usually requiring claimants to co-operate.
Collective Action – WAMCA
Pursuant to Section 3:305a of the DCC, a collective action can only be brought by a foundation or an association with full legal capacity, provided that it advances the interests it seeks to protect in accordance with its articles of association and that the interests of the injured parties are sufficiently safeguarded.
The interests of the injured parties are sufficiently safeguarded if the interest organisation is sufficiently representative in terms of the persons whose interests the collective action seeks to protect, given its constituency and the size of the claims it represents, and has (inter alia):
We note that the District Court may declare an interest organisation admissible without the need to satisfy these requirements if the collective action is brought for an idealistic purpose and the financial interest is very limited, or if the nature of the claim of the interest organisation or the persons whose interests the collective action seeks to protect warrants this. However, this exception can only apply if the claim is not for monetary damages.
Furthermore, the directors involved in the formation of the interest organisation, and their successors, can have no direct or indirect profit motive which is realised through the interest organisation.
Collective Settlement – WCAM
The settlement must have been concluded by, and the request to declare the settlement generally binding must have (also) been made by, a foundation or an association with full legal capacity.
Like under the WAMCA, the interest organisation must be sufficiently representative and the interests of the injured persons must be sufficiently safeguarded.
The Assignment Model
There are no special requirements for SPV’s in proceedings on the basis of the assignment model or mandates/powers of attorney. The Amsterdam District Court held in the Trucks case that the safeguards introduced by the WAMCA (or the Claim Code) do not apply to such SPV’s.
Collective Action – WAMCA
The District Court eventually determines the narrowly defined group of injured persons whose interests the interest organisation is seeking to protect in the collective action. However, the more specific this description, the more issues may arise in terms of the required proof for establishing who actually belongs to this group. It remains to be seen how such issues will be resolved.
There is no upper limit on the number of persons in the narrowly defined group. There is a lower limit, however. The collective action will only be dealt with on its merits if the number of persons whose interests the collective action seeks to protect is sufficient. Also, if the number of injured persons who have opted out is too large, the District Court may decide not to move forward with the collective action.
The mechanism for joining a collective action is, in principle, opt-out for Dutch residents and opt-in for non-Dutch residents. However, the District Court may decide that non-Dutch residents will also be represented on an opt-out basis.
A particular feature of the WCAM is that for persons who have opted out, no collective action can be brought based on similar factual and legal questions regarding the same event(s). Furthermore, individual proceedings between the defendant(s) against whom the collective action has been brought and a person who opted out can be stayed at the request of either party if the proceedings concern similar factual and legal questions regarding the same event(s). The stayed proceedings will be resumed upon the request of either party if they have been stayed for more than one year.
Collective Settlement – WCAM
The settlement agreement should provide the group(s) of injured persons on whose behalf the settlement was concluded, and the number of persons belonging to the group(s).
There is no upper limit on the number of persons on whose behalf the settlement has been concluded. There is again a lower limit, however. A settlement will not be declared generally binding if the group of injured persons on whose behalf the settlement has been concluded is too small to justify declaring the settlement generally binding.
The Assignment Model
In proceedings on the basis of the assignment model or mandates/powers of attorney, the group on whose behalf the action is brought is determined by the injured parties who assign their claims to the SPV or give the SPV a mandate/power of attorney, which is also the mechanism for joining the action.
There is no lower limit on the number of persons on whose behalf the action can be brought. However, separate claims can only be brought together if they are connected in such a way that reasons of efficiency justify a joint hearing. Moreover, a court may, in view of the manageability of the proceedings, impose upper limits by way of case management, but nothing precludes the SPV from bringing claims that exceed such upper limits in separate proceedings.
Collective Action – WAMCA
An essential feature of the WAMCA is that there is, eventually, an exclusive representative (the Dutch law equivalent of the American lead plaintiff) that acts on behalf of the entire group of injured persons. The possibilities for joinder of further interest organisations are therefore in principle limited to that which is described in 4.2 Overview of Procedure, ie, within three (or upon request up to six) months of the entry of the writ of summons in the initial collective action in the central register and provided that the consecutive interest organisation is admissible.
Interest organisations that are not appointed as the exclusive representative continue to be parties to the collective action. However, in principle only the exclusive representative will carry out the procedural acts, although the District Court may direct that the other interest organisations may also carry out procedural acts. Furthermore, if the nature of the collective action or of the interest organisations (eg, given its constituency) or of the persons they represent so warrant, the District Court may elect to designate multiple exclusive representatives in a collective action.
Collective Settlement – WCAM
In a procedure on the basis of the WCAM, the request to declare the settlement binding on all injured persons is made by the parties to the settlement agreement, ie, the interest organisation and the party that will pay the compensation. In addition, injured persons that raise objections against the settlement also become a party to the proceedings.
The Assignment Model
Unless the relevant limitation period has expired, injured parties can continue to assign their claims to the SPV or give the SPV a mandate/power of attorney after the action has been brought. The SPV can then simply increase its claim in the proceedings. However, a court may, in view of due process of law, impose an end date after which no further increase of claims is allowed, but nothing precludes the SPV from bringing additional claims after that end date in separate proceedings.
Furthermore, courts tend to use their case management powers to bundle similar actions brought by different SPVs together to promote efficiency and to prevent conflicting outcomes.
Under Dutch procedural law, courts have ample case management powers, including in respect of collective actions and settlements. Experience shows that courts increasingly make use of these powers.
For example, pursuant to Section 87 of the DCCP, a court may, upon request of (one of) the parties or of its own initiative, in all cases and in every stage of the proceedings, order a hearing to (inter alia):
For procedures on the basis of the WCAM, Section 1018a of the DCCP even gives interest organisations and parties that are held accountable the possibility to request a hearing before a request has been made to declare a settlement generally binding, in order to test a settlement within the meaning of the WCAM.
Moreover, pursuant to Section 392 of the DCCP, a court may also refer questions of law to the Supreme Court for a preliminary ruling if this is required for the court to be able to render a decision and provided that such a preliminary ruling is directly relevant to a multitude of claims related to the same or similar facts.
A poignant example of the far-reaching case management powers of the courts is the direction of the Amsterdam District Court in the Air Cargo and Trucks cases that the defendants as well as the claimants should, to the extent possible, align their respective positions and draft joint submissions.
While proceedings in the Netherlands take an average of one to two years per instance (first instance, appeal and appeal in cassation), mass damages claims tend not to be the average case; they can be rather complex, time-consuming cases, especially in the case of interim appeals and for the quantification of damages. Courts tend to use their case management powers to set a timetable that fits the specific proceedings, usually after discussing this with the parties at a case management hearing.
As discussed in 4.6 Case Management Powers of Courts, courts have ample case management powers, including in terms of the timetable for the proceedings. For example, in complex cases, courts tend to deviate from the standard periods for procedural acts under Dutch procedural law, and allow longer periods, usually upon the request of (one of) the parties.
Furthermore, an essential feature of the WAMCA is the admissibility stage (the Dutch law equivalent of the motion to dismiss) and the settlement stage, meaning that the District Court will only have to deal with the collective action on the merits if the case has not been resolved in one of these earlier stages.
Finally, a claimant in proceedings on the basis of the assignment model or mandates/powers of attorney has the option not to claim monetary damages, but a declaratory judgment establishing liability so that damages can be assessed later in separate follow-up proceedings. This tends to accelerate the main proceedings as complex discussions in respect of the quantification of damages can be reserved for the follow-up proceedings. Moreover, a declaratory judgment establishing liability can be an incentive for the parties to settle the case, as a result of which such discussions can be avoided altogether.
By now, litigation funding has been widely accepted by the judiciary as well as the legislature. In fact, the only funding that is still not allowed, on the basis of their Rules of Professional Conduct, is for lawyers to act on the basis of a contingency fee. Otherwise, litigation funding is seen as appropriate to promote access to justice for injured persons, provided that their interests are sufficiently safeguarded in case of collective actions and settlements.
Therefore, in proceedings on the basis of the WAMCA and the WCAM, any funding arrangements will be assessed against that requirement. The WAMCA explicitly provides in this respect that the interest organisation must have sufficient control over the (conduct of the) collective action and that the directors involved in the formation of the interest organisation, and their successors, can have no direct or indirect profit motive which is realised through the interest organisation. In the Converium and Fortis/Ageas collective settlements, the Amsterdam Court of Appeal accepted success fees of litigation funders in the range of 20-25%.
The Amsterdam District Court held in Trucks that such requirements do not apply to SPVs in proceedings on the basis of the assignment model or mandates/powers of attorney. District Courts and Courts of Appeal have also accepted success fees of litigation funders in the range of 25-35% in such cases.
In relation to costs, under Dutch procedural law the principle of “the loser pays” applies, albeit that the amount the loser has to pay is usually severally capped in terms of the court and legal fees. Adverse costs awards are in principle calculated on the basis of the number of procedural acts and a fixed amount per procedural act that depends on the amount of the claim, and they are unlikely to exceed tens of thousands of euros.
A particular feature of the WAMCA is, however, that if the collective action is prima facie unfounded, the District Court may increase the defendant’s (standardised) legal fees by a maximum of 500% at the expense of the interest organisation that brought the collective action, unless reasonableness and fairness dictate otherwise. Furthermore, if the District Court has to establish a collective compensation scheme in the final stage of a collective action, it may, upon request, deviate from the statutory cap on costs, and order the defendant to pay reasonable and proportionate legal costs and other costs incurred by the interest organisation, unless reasonableness and fairness dictate otherwise. This is another example of an incentive the WAMCA provides to settle mass damages.
Dutch procedural law does not provide for a (pre-)trial discovery or disclosure process like in the US or the UK. However, pursuant to Section 21 of the DCCP, the parties are obliged to fully and truthfully advance facts that are relevant to the court’s decision. Furthermore, pursuant to Section 22 of the DCCP, the court may, in all cases and at any stage of the proceedings, order the parties or one of them, to substantiate their statements.
Pursuant to Section 843a of the DCCP, a person who has a legitimate interest in doing so may, at their own expense, demand disclosure of certain documents relating to a legal relationship to which they or their legal predecessors are a party from the person who has such documents at their disposal or in their custody.
The person from whom documents are demanded is not obliged to comply with the request if it can reasonably be assumed that a proper administration of justice is also guaranteed without providing the requested information. However, in cartel damages actions this exception does not apply, pursuant to Section 845 of the DCCP.
Both Sections 22 and 843a of the DCCP provide that a party may refuse disclosure if there are compelling reasons to do so. Legal privilege can be such a reason, but also confidentiality and privacy are invoked by parties resisting disclosure. If a party refuses disclosure without there being a compelling reason for doing so, the court may draw the adverse inferences it deems appropriate.
Finally, the cartel damages directive (Directive 2014/104/EU) has also been implemented in the DCCP. Therefore, the DCCP contains sections that protect certain categories of information from disclosure. For example, pursuant to Section 846 of the DCCP, a party cannot be required to disclose leniency applications and settlement statements. Furthermore, pursuant to Section 847 of the DCCP, certain other information (relating to a competition authority’s investigation) cannot be used as evidence in civil proceedings until after the competition authority has completed its investigation.
With the entry into force of the WAMCA, the remedies that are available through a collective action are now the same as in proceedings on the basis of the assignment model or mandates/powers of attorney:
In a procedure on the basis of the WCAM, the only available remedy is that the settlement is declared generally binding. This remedy is also available in the settlement stage of a collective action.
The WCAM is a formal mechanism for the settlement of mass damages par excellence. However, the WAMCA and especially the settlement stage of collective actions are also geared towards reaching a settlement. Settlements are also common in proceedings on the basis of the assignment model or mandates/powers of attorney.
In relation to ADR, settlement negotiations in the preliminary stage of a procedure on the basis of the WCAM are particularly suitable for the use of ADR mechanisms. In general, any settlement negotiations in respect of mass damages could benefit from ADR mechanisms such as mediation.
In Dutch legal literature, there has been some debate as to whether collective actions (under the WAMCA) can be brought in arbitration. Reasonable arguments can be made both for and against. To date, it appears that no collective actions have been brought in arbitration.
Collective Action – WAMCA
As discussed in 4.2 Overview of Procedure,the following individuals are in principle bound by a final judgment in a collective action:
However, the judgment will have no effect in respect of a person who, at the time of the announcement of the relevant decisions, could not have been aware of the damage they suffered, if that person, after becoming aware of its damage, has notified the defendant in writing that it does not wish to be bound.
Collective Settlement – WCAM
After a successful procedure on the basis of the WCAM, the settlement will in principle be binding on all injured persons who did not opt-out. However, the settlement will not be binding in respect of a person who, at the time of the opt-out possibility, could not have been aware of the damage they suffered, if that person, after becoming aware of its damage, has notified the relevant party in writing that it does not wish to be bound.
The Assignment Model
The judgment in proceedings on the basis of the assignment model or mandates/powers of attorney will only be binding on the SPV and/or the injured parties who assigned their claims to the SPV or gave the SPV a mandate/power of attorney. Otherwise, the nature of the judgments delivered in collective actions and settlements and in proceedings on the basis of the assignment model or mandates/powers of attorney is no different than the nature of judgments in regular proceedings. There is no special mechanism for the enforcement of these judgments post decision.
The judgments delivered in collective actions and settlements and in proceedings on the basis of the assignment model or mandates/powers of attorney also qualify as judgments within the meaning of Articles 36 and 39 of the Brussels I Regulation (Recast); hence, they shall be recognised, and can therefore also be enforced, in other member states of the European Union. However, pursuant to Articles 45 and 46 of the Brussels I Regulation (Recast), the recognition and enforcement can be refused if the relevant injured party did not have a proper possibility to opt-out and/or they were not properly summoned (in the procedure on the basis of the WCAM). For completeness’ sake, a similar defence could, in principle, also be raised in respect of the enforcement of such a judgment in the Netherlands.
Whether the judgments delivered in collective actions and settlements and in proceedings on the basis of the assignment model or mandates/powers of attorney will also be recognised and be capable of being enforced in other countries, is a matter of treaties between the relevant states and, in the absence thereof, the international private law of the country in which recognition and/or enforcement is sought.
There are no major policy developments or initiatives in relation to the matters discussed in other sections.
Apart from the implementation of the Directive on representative actions for the protection of the collective interests of consumers (see 1.3 Implementation of the EU Collective Redress Regime), no major legislative reform is expected. The legislature would be expected to first see how the WAMCA works out in practice and identify the issues (if any) that the judiciary runs into that may need to be resolved through legislative reform.
For completeness’ sake, it is important to highlight the legislative proposal that is intended to simplify and modernise the rules on evidence in Dutch proceedings in general. A key feature of that proposal is to oblige both the claimant and the defendant to gather as much relevant information about their dispute as possible before the proceedings are initiated.
If anything, Brexit has added to the attractiveness of the Netherlands as a jurisdiction to bring collective actions and settlements and proceedings on the basis of the assignment model or mandates/powers of attorney.
On a more technical note, Brexit has consequences for the recognition and enforcement of Dutch judgments in the United Kingdom. Pursuant to the so-called Withdrawal Agreement, procedures that were started before 1 January 2021 still fall under the Brussels I Regulation (Recast), as discussed in 4.13 Judgments and Enforcement of Judgments. Judgments rendered in such proceedings are thus recognised and can immediately be enforced in the United Kingdom.
However, this does not apply to judgments resulting from procedures that were started after 31 December 2020. For the recognition and enforcement of such judgements, the following applies.
As of 1 January 2021, the United Kingdom is bound by the Hague Convention on choice of court agreements. As the name suggests, this treaty only applies if the parties have agreed on an exclusive choice of forum. Should this be the case, then the judgment resulting from such proceedings will also be recognised in any other country that is a party to the treaty. However, under the treaty, a country is not obliged to recognise a judgment without judicial intervention.
Apart from cases covered by a treaty, the recognition and enforcement in the United Kingdom of Dutch judgments rendered in proceedings initiated after 31 December 2020 is governed by the international private law of the United Kingdom.
Finally, there is a discussion in the Dutch legal literature as to whether the Brussels Convention and/or the Netherlands-British Enforcement Convention will be revived as of 1 January 2021 for cases that fall outside the scope of the transitional law and the Hague Convention.
During the COVID-19 pandemic, the Dutch courts have shown a high degree of flexibility and pragmatism in dealing with the situation. After a standstill of a couple of weeks, the courts soon pivoted into a fully digitised environment in which proceedings could be conducted mostly as usual.
Since March 2022, all COVID-19 restrictions have been lifted, but the increased acceptance of digital means and the required flexibility have remained.
Otherwise, COVID-19 has had little to no impact in respect of the matters listed in the other sections.
However, it is worth noting that, according to the central register for collective actions (see 4.2 Overview of Procedure), multiple collective actions have been brought against the State of the Netherlands in respect of the COVID-19 measures imposed.
The major legislative reform brought about by the Act on the Resolution of Mass Damages in Collective Action (Wet afwikkeling massaschade in collectieve actie ‒ WAMCA) entered into force on 1 January 2020 and it is therefore still early to gauge the success of the new system. The most important feature of the WAMCA is the possibility for interest organisations to also claim monetary damages in collective actions, which was previously not possible in the Netherlands.
Collective actions have been brought under the WAMCA, including claims for monetary damages, but maybe not as many as some would have hoped and many of these collective actions are still in the preliminary and admissibility stages, leaving important questions as to the merits of these claims unanswered. Nonetheless, the following trends and developments can be discerned.
A Typical Dutch Class Action
The typical collective action that could not be brought under the old system, but is now regularly brought under the WAMCA is a claim for monetary damages, often funded by US or UK litigation funders or law firms, with the (alleged) damages usually running in the hundreds of millions, if not billions, of euros and certain parties looking particularly keen to establish a presence in the market. Examples are:
This type of collective action also seems to attract multiple interest organisations willing to bring similar claims, thus sparking carriage disputes between them. Some of these cases and the questions they raise are discussed in more detail below.
Thumbs Up for the Collective Action against Oracle and Salesforce
A requirement that already applied under the old system and was codified by the WAMCA is that the interest organisation bringing the collective action must be sufficiently representative in terms of the persons whose interests the collective action seeks to protect, given its constituency and the size of the claims it represents compared with the total number of injured persons and the aggregate damages.
“Sufficiently representative test”
According to the legislature, the meaning of the term “sufficiently representative” can only be answered by having regard to the specifics of each case, thus leaving the interpretation of what is “sufficiently representative” to the courts and ultimately the Supreme Court. A way to assess whether an interest organisation is “sufficiently representative” is by looking at the number of injured persons affiliated with the interest organisation and the extent to which they support the collective action. It was this test that proved to be an insurmountable hurdle in the collective action against Oracle and Salesforce.
The interest organisation aimed to comply with this requirement by requesting visitors of its website to “like” the fact that it would bring a data privacy claim against two (unnamed) tech companies. The interest organisation collected some 75,000 individual “likes”.
However, the Amsterdam District Court held that this was insufficient to meet the representativeness test. According to the Court, it was unclear what the visitors of the website had exactly “liked” and, therefore, whether they actually supported the collective action. Furthermore, it was unclear who had clicked the “like” button and whether they in fact belonged to the class of persons whose interests the collective action sought to protect.
Given the above, and in line with the step-by-step procedure introduced by the WAMCA, the Amsterdam District Court dismissed the entire collective action straight away and did not deal with the merits of the case (similar to a successful motion to dismiss in the US).
In the meantime, the interest organisation has appealed this judgment with the Amsterdam Court of Appeal. On appeal, the interest organisation intends to argue that the representativeness test cannot be interpreted in such a narrow way that it would in fact render impossible a collective action on an opt-out basis (such as the collective action against Oracle and Salesforce).
The Rush to the Court in the “Service Costs” Litigation against Airbnb
A concern voiced in respect of the exclusive representative introduced by the WAMCA, the Dutch law equivalent of the American lead plaintiff, is that it would give interest organisations an incentive to bring their collective action as soon as possible.
Although it is not the case that the interest organisation that brings the first collective action is automatically appointed as the exclusive representative (this is decided on more substantive grounds), being the first interest organisation to bring a collective action is perceived by some to be a competitive advantage, as other initiatives will as of then only have three (or upon request up to six) months to bring their collective action. Especially in more complex cases, this can prove to be challenging.
Some see the “service costs” litigation against Airbnb as an example of this.
“Service costs” litigation against Airbnb
The background to this case is a judgment of the Dutch Supreme Court in respect of Booking.com. In that judgment, the Supreme Court held (upon a preliminary reference in the context of the question as to whether Booking.com was obliged to participate in a sectoral pension fund) that platforms such a Booking.com qualify as brokers within the meaning of the Dutch Civil Code (DCC).
Two interest organisations immediately brought collective actions, arguing that the same applies to Airbnb and therefore the Dutch law prohibition on brokers from charging commission from both ends of a transaction should take effect. In the collective actions, the interest organisations claimed repayment of the service costs paid by customers of Airbnb amounting to tens of millions of euros.
However, the basis for these claims just as quickly disappeared when the Supreme Court held, upon another preliminary reference, that the prohibition for brokers to charge commission from both ends of a transaction does not apply to holiday accommodations and therefore does not apply to Airbnb.
According to the central register for collective actions (see Dutch site), both collective actions are officially still pending, but it would seem that they will be rather short-lived.
What this does show, however, is that the possibility under Dutch procedural law for lower courts to refer questions of law to the Supreme Court for a preliminary ruling can be a very efficient and effective way to resolve disputes.
Continuing Uncertainty in Respect of Carriage Disputes
Although, as discussed, there are by now multiple cases in which more than one interest organisation has brought a collective action, there has not yet been a judgment in which an exclusive representative has been appointed where there was a carriage dispute between interest organisations.
In fact, thus far only one interest organisation's bid to be appointed exclusive representative (in the “dieselgate” litigation against Daimler/Mercedes) has been dismissed. However, this was not on substantive grounds but only because that interest organisation had missed the deadline for bringing its collective action within three months after the initial collective action was brought (and did not request an extension).
Hence, it remains to be seen how District Courts will interpret the different viewpoints, ie, the size of the group of injured persons on whose behalf the interest organisation is acting, the size of the financial interests of that group, any other activities performed by the interest organisation for the injured persons and any previous activities performed or collective actions brought by the interest organisation.
It also remains to be seen if (and in which cases) District Courts elect to designate multiple exclusive representatives, which they can do if the nature of the collective action or of the interest organisations (eg, given their constituency) or of the persons they represent so warrant.
This particular feature of the WAMCA and the continuing uncertainty surrounding it is a matter of concern for many litigation funders. Indeed, the prospect of having to fund significant costs upfront (especially when an ad hoc interest organisation still needs to be established) with the possibility of “losing” a collective action to a competing initiative without the certainty of any return or compensation of costs is far from attractive.
Litigation funders appear to have two ways of dealing with this. On the one hand, there are initiatives trying hard to establish a presence in the market, presumably to create a solid track record that may be of use in future carriage disputes. On the other hand, many initiatives continue to resort to the so-called assignment model, a tried and tested well accepted means of bundling individual claims that gives litigation funders full control over “their” claims and the conduct of proceedings in respect thereof. Especially in cartel damages actions, it would be unsurprising to see extensive opt-outs.
The Viability of the Data Privacy Litigation
Perhaps the type of claim that raises the most questions among both lawyers and the judiciary is the mass-scale litigation in respect of data (privacy) breaches. Such claims usually entail a data (privacy) breach said to have affected millions of people, who would therefore be entitled to a lump-sum compensation in the range of EUR500–1,500 per capita, as a result of which the claims quickly run into billions of euros.
While many do accept the idea that if someone actually incurs damages as a result of a data (privacy) breach (eg, through identity fraud), a lot of practitioners find the idea that the mere involvement (actual or construed) of someone's data in a data (privacy) breach would warrant damages of EUR500–1,500 per capita difficult to stomach.
Numerous questions have been raised in respect of these claims, including the following.
A claim that is particularly frowned upon by some is the collective action announced against the Dutch Joint Health Service (Gemeenschappelijke Gezondheidsdienst ‒ GGD) for (alleged) data (privacy) breaches in respect of their COVID-19 test database. Especially after the GGD offered compensation to people that actually incurred damages, some fail to see why there would be grounds for a claim of no less than EUR3.2 billion, also in view of the fact that the (alleged) breaches took place in the midst of the pandemic and that the GGD was responsible for fighting the pandemic.
Only time will tell if (and to what extent) Dutch courts are willing to hear such claims, how the (other) questions and uncertainties will be resolved and in what direction the new statutory framework for collective actions will evolve.