NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
Admissibility stage 5. The collective action will only be dealt with on its merits if and after the district court has ruled that: a. the claimant meets the admissibility requirements (see 3.3 Standing ); b. the claimant has sufficiently demonstrated that bringing the collective action is more efficient and effective than bringing individual actions, because the factual and legal questions to be answered are sufficiently common, the number of persons whose interests the collective action seeks to protect is sufficient and their financial interests are sufficiently large; and c. the collective action is not prima facie unfounded. 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 lead plaintiff in a US class action), having regard to the size of the group of injured persons on whose behalf the interest organisa- tion 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 announce- ment of the decisions referred to under points 6 and 7 above. Non-Dutch residents belonging to this narrow- ly 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 col- lective action will in principle be binding on all injured persons who opted in or did not opt out.
Settlement stage 9. After the appointment of an exclusive representa- tive, the district court will set a period for testing a settlement. 10. If a settlement is reached, the settlement agree- ment must be submitted to the district court for approval. Pursuant to the WAMCA, many provi- sions 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 per- sons belonging to the narrowly defined group will again be given the possibility to opt out. The set- tlement agreement will in principle be binding on all injured persons who do not opt out. Final stage 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 dam- ages, 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 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 compensa- tion on the other. The WCAM is silent on the settle- ment process itself and only provides what the settle- ment 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 inter- est organisation and the party that will pay the com- pensation) can then jointly request the Amsterdam damages awarded is reasonable. Collective Settlement – WCAM
171 CHAMBERS.COM
Powered by FlippingBook