NETHERLANDS Trends and Developments Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
collective action. According to the court, the legisla- ture did not intend to exclude the possibility of other parties lodging claims in proceedings on the basis of the WAMCA; only individual claimants lodging similar claims to those made by the interest organisation are not allowed. Hence, the fact that the health insurers’ claims were lodged (by themselves and on their own behalf) by virtue of the same writ of summons with which SEC initiated the WAMCA proceedings (on behalf of the injured parties) is insufficient to declare the health insurers inadmissible, held the court. As the health insurers’ claims (for declaratory relief) are based on the same facts and circumstances as SEC’s claims, all claims can be assessed on the same legal grounds and the health insurers’ claims do not com- plicate or delay the collective action, found the court. The health insurers’ case was therefore not split off from the collective action. The Rotterdam District Court did not allow TPC to join SDBN’s collective action against Amazon with a view to the preliminary ruling proceeding before the Court of Justice of the European Union. TPC had argued that it should be allowed to join as the answer to the questions referred to the CJEU are also of relevance for its collective action against Oracle and Salesforce. But the court held that adding TPC as interest organi- sation in the collective action against Amazon, along- side SDBN, runs counter to the system of the WAMCA (whereby there is, eventually, an exclusive representa- tive) and is therefore not permitted. Court-ordered disclosure Under Dutch procedural law, courts have ample case management powers. For example, pursuant to Sec- tion 22 of the Dutch Code of Civil Procedure, the court may, in all cases and at any stage of the proceedings, order the parties or any one of them, to substantiate their statements. That is what the Amsterdam District Court did in the Renault Dieselgate collective action. The court ordered Renault to substantiate its statements by means of answering a number of questions in order for the court to be able to further assess which vehicles had been fitted with a so-called cheat device (ie, soft- ware installed in the control unit of a vehicle that can detect when a car is undergoing an emissions test and
change the vehicle’s performance to improve results). The court held that for the substantive hearing, it is essential that there is detailed insight into the pres- ence of cheat devices, because a meaningful substan- tive discussion is only possible based on a complete overview of the relevant facts. The court found that the operation of the emission control system installed in each of the affected vehicles, and specifically the software used therein, is known to Renault, which programs the software, while injured persons (on whose behalf the interest organisation is acting) have no insight into how that software works. Therefore, the court ordered Renault to provide sufficient fac- tual information to substantiate its claim that it would not have used cheat devices in the affected vehicles. The fact that Renault had not yet filed a statement of defence was not a reason for the court to refrain from making such an order; the court considered it impor- tant that the relevant information becomes available as early as possible in the proceedings, so that both parties can formulate their positions based on that information at the oral hearing. A similar order was made by the Amsterdam District Court in the Mercedes Dieselgate collective action. The first supreme court judgments In the meantime, the first cases have made it all the way up the Dutch Supreme Court. In one of the cases, the supreme court clarified that the requirements (i) as to what the writ of summons in proceedings on the basis of the WAMCA should detail; and (ii) that the writ must be entered into the central register for collective actions, only apply in the first instance and not on appeal or in cassation. 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. Upon request of another interest organisation, the court may extend this time limit by no more than three months. Unlike the Amsterdam District Court, which held in the Apple App Store collective action that such extension only applies to the specific inter- est organisation(s) requesting the same, the Amster- dam Court of Appeal found in the Mercedes Diesel- gate collective action that other interest organisations
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