NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
following a settlement, but that interest organisations lacked the ability to collectively claim monetary dam- ages 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. Pursu- ant to the WAMCA, interest organisations now also have the right to claim monetary damages in collective actions. The WAMCA also introduced safeguards in respect of transparency and the governance of inter- est 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 claims. 1.2 Basis for the Legislative Regime, Including Analogous International Laws Although the Dutch legislature has always been wary of the possible excesses in US-style litigation, both the WCAM and the WAMCA predominantly reflect ele- ments of a US-style 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 out- come generally binding (WCAM and WAMCA) and the incentives to reach a settlement (WAMCA). However, the WCAM and WAMCA remain distinct from US class actions. In particular, the safeguards introduced by the WAMCA to protect the interests of the injured per- sons (eg, putting profit motives at arm’s length) have a European background. 1.3 Implementation of the EU Collective Redress Regime One of the reasons for the introduction of the WAMCA was the 2013 Commission Recommendation on com- mon principles for injunctive and compensatory col- lective redress mechanisms, which was duly taken into account by the Dutch legislature. Hence, the Dutch legislature is of the opinion that the WAMCA already met the requirements of Directive (EU) 2020/1828 on representative actions for the protection of the collec- tive interests of consumers, and only needed amend- ment where the Directive gives supplementary rules in some specific cases. Also, the rules of the Direc- tive on the designation and acceptance of qualified
entities that can bring collective actions in consumer cases needed implementation. On 25 June 2023, the implementing Act entered into force. 2. Legal Framework 2.1 Collective Redress and Class Action Legislation Laws The principal laws and regulations governing collec- tive 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 of the DCC. With the entry into force of the WAMCA, additional rules have been laid down in Sections 1018b–1018m of the DCCP. Collective set- tlements are governed by the WCAM, which was laid down in Sections 7:907–7:910 of the DCC and Sec- tions 1013–1018a of the DCCP. Regulations 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 founda- tion or association will always put 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. 2.2 Scope of Areas of Law to Which the Legislation Applies Substantive Scope The substantive scope of both the WAMCA as well as the WCAM is unlimited. The principal laws and regu- lations 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
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