NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
account. Such claim can be brought before any com- petent district court. Under the assignment model, the SPV assumes any and all costs related to the liti- gation 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 attor- ney, 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, if successful, the injured parties pay the SPV a percentage of the com- pensation recovered. Case Law 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). This was recently con- firmed by the Hague District Court in the proceedings brought by Stichting Environment and Fundamental Rights against Repsol. On the relevant safeguards, see 3.3 Standing .
the settlement of mass damages. The statutory frame- work clearly reflects this by prescribing the following steps. Preliminary stage 1. Before the collective action is brought, the inter- est organisation must have made sufficient efforts to realise the relief sought by conducting consultations with the defendant, in the absence of which the inter- est organisation will not be admissible in the collective action. 2. If these consultations are to no avail (which is usu- ally the case), the interest organisation should issue a writ of summons detailing inter alia: a. the event or events to which the collective action relates; b. the persons whose interests the collective action seeks to protect; and c. the degree of commonality of the factual and legal questions to be answered. 3. Within two days of the date of issue, the writ of summons must be entered into the central register for collective actions. This used to be a copy of the entire writ of summons. However, as of the entry into force of the Act implementing the EU Collective Redress Regime as per 25 June 2023, it suffices for this to be an extract of the writ of summons. 4. Within three months of the entry of the writ of sum- mons in the central register, other interest organi- sations may bring a collective action based on 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 (even if that district court would oth- erwise not be competent to hear the consecutive col- lective action), after which the collective actions will be consolidated. Upon the request of another interest organisation, the court may extend this time limit by no more than three months. In one of its first judg- ments on the WAMCA, the Dutch Supreme Court held that such extension only applies to the specific inter- est organisation(s) requesting the same.
3.2 Overview of Procedure Collective Action – WAMCA
The underlying rationale for the WAMCA was to intro- duce a step-by-step procedure that would promote
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