NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
lective 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 that is realised 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. As 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 SPVs in pro- ceedings on the basis of the assignment model or mandates/powers of attorney. The Amsterdam Dis- trict Court held in the Trucks case that the safeguards introduced by the WAMCA (or the Claim Code) do not apply to such SPVs. This was recently confirmed by the Hague District Court in the proceedings brought by Stichting Environment and Fundamental Rights against Repsol. 3.4 Class Members, Size and Mechanism – Opting In or Out Collective Action – WAMCA through the interest organisation. Collective Settlement – WCAM The relevant district court eventually determines the narrowly defined group of injured persons whose inter- ests 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, how- ever. 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 repre- sented 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 establish the group(s) of injured persons on whose behalf the set- tlement 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 can be concluded. As with collective actions, there is, however, a lower limit. 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
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