NETHERLANDS Trends and Developments Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
Brande & Verheij LLP Weena 505 3013 AL Rotterdam The Netherlands
Tel: +31 10 499 27 61 Fax: +31 10 499 27 99 Email: theodoor.verheij@brandeverheij.com Web: www.brandeverheij.com
From Admissibility to Merits The major legislative reform brought about by the Act on the Resolution of Mass Damages in Collective Action ( Wet afwikkeling massaschade in collectieve actie ‒ WAMCA) entered into force on 1 January 2020 and, although the WAMCA is currently under evalua- tion, it is therefore still early to gauge the success of the new regime. The most important feature of the WAMCA is the possibility for interest organisations to also claim monetary damages in collective actions, which was previously not possible in the Netherlands. Collective actions continue to be brought under the WAMCA, including claims for monetary damages, but many of these collective actions are still in the prelimi- nary and admissibility stages, leaving important ques- tions as to the merits of these claims unanswered. Nonetheless, the following trends and developments can be discerned as these cases are making their way through the district courts, courts of appeal and – cur- rently – also the Dutch Supreme Court. The first case that makes it to the end is… dismissed Because the preliminary and admissibility stages of collective actions have been taking a long time, many eyes were on the first case to surmount these hurdles and make it to adjudication. To much disappointment, however, in the Vattenfall collective action all claims were eventually dismissed on the merits. The Amsterdam District Court stressed that the mar- ket for electricity is a free market and that, hence, Vattenfall was at liberty to set its rates in the way it did, including in respect of the contested pricing compo- nent. The court found that Vattenfall was clear about
what components it would charge, in return for which it supplied electricity. Vattenfall was not obliged to better inform its business customers; these customers were responsible for their own choice of supplier and for the contract they entered into and must, held the court, be deemed capable of making a well-consid- ered decision. The court’s conclusion was that these business customers were free to negotiate contract terms and switch suppliers, but for whatever reason did not do so, which is their own responsibility. If a decision on inadmissibility is overturned on appeal, the case shall be remitted to the district court In the Mercedes Dieselgate collective action, the Amsterdam District Court had declared Stichting Emission Claim inadmissible and therefore not dealt with the subsequent stages of the case. The Amster- dam Court of Appeal overturned this judgment, which led to the question of whether the subsequent stages of the case should be dealt with by the court of appeal (in one instance) or whether the case should be remit- ted to the District Court. The court of appeal held that the latter suited the procedural order determined by the district court, on the basis of which the case was dealt with in phases. The fact that remitting the case to the district court may lead to delay, additional costs and procedural complications does not detract from the efficiency and effectiveness of a collective action, found the Court of Appeal. According to the Court, considering and assessing the remaining issues in two instances enhances the depth of the debate and offers all par- ties the opportunity to utilise the remedies of appeal.
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