According to article 3:305a (old) DCC, in order to file a collective claim, the claimant i) had to have legal personality3 and ii) first had to have attempted to reach a settlement with the respective defendant(s).4 Article 3:305a paragraph 3 (old) DCC explicitly stipulated that monetary claims could not be filed. Furthermore, no conduct could be used as the basis for the claim if the persons whose interests were affected by that conduct objected to the claim.5 Based on article 3:305a paragraph 5 (old) DCC, a judgment in a collective action proceeding had no effect against a person whose interest was covered by the legal action but had objected to the effect of the judgment in relation to him, unless the nature of the judgment meant that the effect could not be excluded in relation to that person.
In 2005, the Collective Mass Claims Settlement Act, Wet collectieve afwikkeling massaschade: (the "WCAM"), came into effect. This act enabled claimants and defendants in collective actions to reach a collective settlement by submitting a (joint) request to the Amsterdam Court of Appeal to declare their collective settlement binding on the entire class of individual claimants.6 For the addressed parties, this had the advantage that significant certainty could be obtained about their financial obligations towards individual claimants.7 After all, the WCAM settlement can be made binding on all members of the class who do not explicitly opt out. The entry into force of the WCAM did not alter that a collective action could not be filed for monetary damages.8
A significant change of the Dutch legal system for collective actions came in 2020 with the introduction of the Act on the settlement of mass damage in collective action Wet afwikkeling massaschade in collectieve actie": (the "WAMCA"), which changed article 3:305a DCC and took effect on 1 January 2020.9 The most important change introduced by the WAMCA was that a representative organisation (i.e., a claim vehicle) could now claim monetary compensation on behalf of a group of individual claimants. Previously, a collective action was largely limited to seeking a declaratory judgment, which meant that separate legal proceedings on behalf of individual claimants were still required to seek compensation if the declaratory judgment was ruled in the claimant’s favor (if no collective settlement was reached and confirmed by the Dutch courts pursuant to the WCAM).
The objective of the WAMCA is to reduce the burden on both individual claimants and the court system by consolidating similar claims into a single collective action, thereby ensuring a consistent outcome for all individual claimants.10 The WAMCA is therefore structured around the concept of a claim vehicle, which must either be a non-profit foundation (Stichting) or association (Vereniging).11 This organisation is the party that initiates the legal proceedings on behalf of a group of individual claimants.12 Another, and crucial, aspect of the WAMCA regime is the court's role in managing multiple collective actions. If several claim vehicles file similar claims against the same defendant(s) about the same topic, the court will designate a single exclusive representative to continue the legal proceedings.13 The court makes this decision based on a careful assessment of which organisation is best suited to represent the entire class of individual claimants. Factors considered include the number of class members each organisation represents, the organisation's track record, experience in similar cases, the robustness of its governance, and funding. In appointing an exclusive representative, the court also takes into consideration the financial interest of the individual claimants represented by a certain claim vehicle.14
Based on the WAMCA's transitional law, the provisions of the WAMCA apply to legal claims relating to an event or events (causing damage) that took place on or after 15 November 2016.15 If there is a series of events that took place both before and after 15 November 2016, the law applicable is that which was in force at the time of the last event to which the claim relates.16
For the remainder of this overview, we will only focus on the legal framework applicable to the WAMCA.
1 See, e.g., HR 1 July 1983, ECLI:NL:PHR:1983:AD5666 (Staat/LVS). In this ruling the Supreme Court confirmed the admissibility of a claim filed by the National Association of Specialists in a case against the Dutch State.
2 Article 3:305b paragraph 1 stipulates that a legal entity referred to in article 1 of Book 2 of the DCC may bring legal action to protect the interests of other persons, insofar as it has been entrusted with the representation of those interests. Article 3:3035b paragraph 2 then declares that articles 3:305a paragraphs 2-5 are applicable to such legal action.
3 Article 3:305a paragraph 1 DCC.
4 Article 3:305a paragraph 2 DCC.
5 Article 3:305a paragraph 4 DCC.
6 C.M.D.S. Pavillon, ‘Leent het materiële privaatrecht zich voor de afwikkeling van massaschade’, RMThemis 2019/4, p. 163.
7 Kamerstukken II 2003/4, 29414, 3, p. 1.
8 Wet van 23 juni 2005, Stb. 2005, 340.
9 C.M.D.S. Pavillon, ‘Leent het materiële privaatrecht zich voor de afwikkeling van massaschade’, RMThemis 2019/4, p.170; see also E. Hoogervorst, C. Klaassen & A. Knigge, ‘Hoger beroep en cassatie in een collectieve actie op grond van de WAMCA: een blik vooruit’, TCR 2021/4.
10 Kamerstukken II 2016/17, 34608, 3, p. 1 and p. 8.
11 Article 3:305a paragraph 1 DCC.
12 Kamerstukken II 2016/17, 34608, 3, p. 19.
13 rticle 1018e paragraph 1 Dutch Code of Civil Procedure.
14 Kamerstukken II 2016/17, 34608, 3, p. 19.
15 Rb. 16 augustus 2023, ECLI:NL:RBAMS:2023:5252, paragraph 6.3.
16 Rb. 16 augustus 2023, ECLI:NL:RBAMS:2023:5252, paragraph 6.3.
Rules for commonality of claims/class certification
The court's decision on admissibility is a crucial step at the beginning of the collective action proceedings. In the Dutch collective action system, part of the admissibility test focuses on the representativeness of the claim vehicle.17 This test is designed to ensure that the collective action is appropriate and that the organisation is fit to represent the interests of the individual claimants.18 In relation to the representativeness of the organisation, the organisation must - inter alia – meet the following set of criteria:
- The statutory objective of the organisation must include the protection of the interests of the individual claimants;19
- The organisation must have a robust internal governance structure, which includes a supervisory organ to oversee the respective directors;20
- The organisation must have sufficient financial resources to pursue the claim;21 and
- The interests that the organisation aims to protect must be sufficiently uniform across all class members.22
The second part of the admissibility test focuses on the claims themselves and is often referred to as "commonality". The court will determine whether a collective action is the most efficient and effective way to handle the dispute.23 This requires the claim vehicle to show that the individual claims of the class members have a high degree of commonality in terms of their legal and factual basis. For example, if all claims arise from the same event, such as a defective product or a single instance of misleading information, they are likely to be considered sufficiently common.24
17 Kamerstukken II 2016/17, 34608, 3, p. 7.
18 Kamerstukken II 2016/17, 34608, 3, p. 8.
19 Article 3:305a paragraph 1 DCC.
20 Article 3:305a paragraph 2 (a) DCC.
21 Article 3:305a paragraph 2 (c) DCC.
22 Article 3:305a paragraph 1 DCC.
23 Kamerstukken II 2016/17, 34608, 3, p. 14. Vgl. HR 26 februari 2010, ECLI:NL:HR:2010:BK5756 (Stichting Baas in Eigen Huis/Plazacasa), paragraph 4.2. See also, Kamerstukken II 2016/17, 34608, nr. 3, p. 39.
24 Kamerstukken II 2016/17, 34608, nr. 3, p. 39 en 41.
Class member participation (opt-in/opt-out)
Under Dutch law, whether the opt-in or opt-out mechanism applies in relation to the participation by the individual claimants is determined by the class member's domicile. After all, article 1018f of the Dutch Civil Code of Procedure (“DCCP”) outlining the specific rules for individual claimants involved in a collective action, distinguishes between Dutch residents, for whom an 'opt-out' system applies, and non-residents, who generally have to 'opt-in'.
For Dutch residents, there are two moments during the collective action proceedings to exercise the right to opt out. In principle, once a collective action is declared admissible by the court, all individual claimants who are Dutch residents will be bound by the outcome of the legal proceedings. However, to avoid being bound, these individual claimants must take a proactive step to opt out of the collective action. They must do this by sending a written notification to the court registry. This must be done within a court-determined period of at least one month after the announcement of the judgment of the court appointing an exclusive representative.25 This will be the first moment for Dutch residents to opt out. The court has the power to decide to halt the collective action if the number of people who opt out is so large that continuing the procedure is no longer justified.26 Article 1018h paragraph 5 DCCP gives individual claimants also the option of withdrawing from a collective settlement. For individual claimants who have their place of residence or domicile in the Netherlands, this is the second opt-out option.27
Individual claimants who have opted out cannot file a new (or separate) claim based on similar facts and legal questions for the same event or events.
For individual claimants who are not residents of the Netherlands, the opt-in mechanism is applicable. This means that foreign claimants are not automatically included in the collective action. To be part of the class and be bound by the outcome, they must take an affirmative, explicit step to opt in to the Dutch collective action proceedings. After the appointment of the exclusive representative, they could indicate by means of an opt-in statement that they agree to the representation of their interest in the collective action.28
25 Article 1018f paragraph 1 DCCP.
26 Article 1018f paragraph 1 DCCP.
27 Article 1018f paragraph 1 DCCP.
28 Article 1018f paragraph 5 DCCP.
In the Dutch collective action system, the authorised representative and/or each claim vehicle are both a formal and substantive party to the collective proceedings.29 The individual claimants whose interests are represented by the claim vehicle are not parties to the legal proceedings and therefore cannot lodge an appeal. If there are more claim vehicles, every claim vehicle can lodge an appeal independently, based on its own grievances.30 Appeals and cassation appeals of an interim judgment are in the Dutch legal system (also in the context of WAMCA proceedings) only possible with the permission of the court, unless it concerns a provisional measure.31 Given the significant impact that an interim decision (for instance, on jurisdiction or applicable law) in WAMCA proceedings often has and the considerable financial interests that may be involved, the parties may indeed wish to lodge an interim appeal against an interim ruling that is unfavourable to them before continuing with the proceedings. If liability is completely rejected or the claim vehicle(s) are declared inadmissible, this constitutes a final judgment, against which an appeal is possible.32
The WAMCA makes two exceptions to the general rule that a judicial decision is subject to appeal: i) the appointment of the exclusive representative and ii) the approval of a collective settlement.
29 HR 3 April 2020, ECLI:NL:HR:2020:587.
30 E. Hoogervorst, C. Klaassen & A. Knigge, ‘Hoger beroep en cassatie in een collectieve actie op grond van de WAMCA: een blik vooruit’, TCR 2021/4, p.113.
31 Article 337 DCCP and article 401a DCCP.
32 E. Hoogervorst, C. Klaassen & A. Knigge, ‘Hoger beroep en cassatie in een collectieve actie op grond van de WAMCA: een blik vooruit’, TCR 2021/4, p. 116.
Article 3:305a paragraph 2(c) DCC requires that the claim vehicle has sufficient resources to bear the costs of bringing the claim, with sufficient control over the legal action remaining with the claim vehicle. In relation to this, the court may, where necessary, request access to the claim vehicle’s books, without being obliged to also disclose this information to the counterparty (i.e., the defendant(s)).33 If a structure involving third-party litigation funding is chosen, the court may request the disclosure of the financing agreement in order to examine how the financier’s influence on the legal proceedings is regulated therein and whether that regulation does not prevent the interests of the injured parties from being properly represented.34
Article 3:305a(2) DCC, in conjunction with the general guarantee requirement referred to in article 3:305a(1) of the DCC, provides the court with a tool for 'excluding cases in which third-party litigation funding could adversely affect the interests of the individual claimants, such as financing arrangements that stand in the way of careful representation of interests, for example because the financier is given full decision-making power over whether to agree to a possible settlement proposal'.35 In addition to the WAMCA, under Dutch law there are also other ways litigation financing and excessive claims behaviour can be assessed, for example, abuse of the law (article 3:13 DCC).
33 Mr. J.W. Leedekerken en mr. E.A.J. Schoenmakers, ‘Het veranderende speelveld voor procesfinanciering’, MvV 2023/6, p. 228.
34 Mr. J.W. Leedekerken en mr. E.A.J. Schoenmakers, ‘Het veranderende speelveld voor procesfinanciering’, MvV 2023/6, p. 228. See also, Rb. 7 juni 2023, ECLI:NL:RBAMS:2023:8485, paragraph 2.9.
35 Kamerstukken II 2016/17, 34608, nr. 3, p. 11 and p. 12.