NETHERLANDS Trends and Developments Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
can also benefit from the extension. However, on a leapfrogging appeal in the Apple App Store collective action, the Dutch Supreme Court overruled the court of appeal and sided with the district court. The supreme court held that a court has a discre- tionary power, both with regard to the extension itself as well as with regard to its duration. The manner in which the court exercises this power will be largely determined by the reasons underlying the exten- sion request. A decision on an extension request will therefore be tailored to the situation of the interest organisation requesting the extension. In view thereof, it must be assumed that an extension applies exclu- sively to that interest organisation and therefore does not have general effect, found the supreme court. To be bound or not to be bound and opt out or in In the admissibility stage, the court determines the precise substance of the collective action and injured persons are given the possibility to opt out or in. In the collective action against the Dutch Joint Health Service ( Gemeenschappelijke Gezondheidsdienst , or GGD) Stichting Initiatieven Collectieve Acties Mas- saschade (ICAM) had been declared inadmissible in its claims for damages. The Amsterdam District Court confirmed that this means that when members of the narrowly defined group of injured persons whose interests ICAM is seeking to protect individually claim damages, the Court’s judgment will not be binding. After all, the members of that narrowly defined group are only bound by the Court’s judgment on the precise substance of the collective action (which does not, in this event, comprise claims for damages), held the court. Consequently, the Court found that an opt-out is not required for individuals to be able to file claims for damages against the GGD. Given the precise substance of the collective action (no claims for damages), it would not be meaningful to give members of the narrowly defined group of injured persons a possibility to opt in or out, according to the Court. Members have no interest in opting in, because if ICAM’s claims are awarded, this cannot give them any personal claim against the GGD. Members neither have an interest in opting out, because they cannot suffer any disadvantage as a result of ICAM’s claims being awarded or dismissed, as these claims con-
cern a general interest. Therefore, the court ruled that members of the narrowly defined group of injured per- sons shall not be given an opportunity to opt out or in. The similarity requirement The requirement of similarity is met if the interests that the collective action seeks to protect can be bundled, thus promoting efficient and effective legal protection for the injured persons. Interests can be bundled if the questions of fact and law concerned are sufficiently common to the group of injured persons whose inter- ests the interest organisation is seeking to protect so that these issues can be adjudicated in a single, collective procedure, without having to consider the specific circumstances of individual members of the group. Hence, whether the similarity requirement is met depends on whether these specific circumstanc- es can be sufficiently abstracted from when assessing the collective action (ie, do not make the difference between class members). However, the interests do not have to be identical in content or scope. On this ground, the Amsterdam District Court dis- missed the collective action brought by Stichting Mas- saschade & Consument against ABN Amro in respect of revolving credit products with a variable interest rate that were offered to small-scale business entities. This collective action was based on the premise that the fact that the various versions of the credit agree- ments in question stated that the interest rate would be variable means that all these entities could expect the interest rate to fluctuate with market rates. The court held that it should first be determined whether the parties have agreed on anything regard- ing changes in the variable interest rate and, if so, what. In interpreting the agreements, specific circum- stances of individual members of the group cannot be abstracted from, found the court. If it were to be held that the parties have not agreed on anything regarding changes in the variable interest rate, the question of how such a gap should be filled must be assessed on the basis of the specific circumstances of individual cases, according to the court. Furthermore, the court found that if it were to be held that ABN Amro has a discretionary power to not let the interest rate fluctu- ate with market rates, it is not possible to determine
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