NETHERLANDS Trends and Developments Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
in general terms whether exercising such a power is unacceptable. The duty to substantiate It is by now settled case law that compliance with the admissibility requirements is not assessed at the time the interest organisation issues its writ of sum- mons (ex tunc), but at the time when the court decides on admissibility (ex nunc), so that all developments – including the curing of any deficiencies – can be taken into account. This does not mean, however, that the obligation to detail in the writ how these obligations are met should be taken lightly, if only because the interest organisation must also make a full and truth- ful presentation of the facts that are relevant to the decision in the matter. In view thereof, the Noord-Holland District took seri- ous issue with the writ of summons of Fiat Chrysler Investors Recovery Stichting (FCIRS) in the collective action against Stellantis. The court held that FCIRS had misinformed the court on multiple points in that writ. This also seems to have played a role when the court assessed the representativeness of FCIRS. Under the WAMCA, a collective action can only be brought by an interest organisation if it is sufficiently representative in terms of the persons whose interests the collective action seeks to protect, given its con- stituency and the size of the claims it represents. In that respect, FCIRS had estimated the total number of injured parties at 30,000–440,000, out of which some 3,500 would have affiliated themselves with FCIRS. FCIRS had not substantiated this latter number and admitted that it had neither verified whether these par-
ties actually had a claim nor assessed what the size of their claims would be. At the oral hearing, FCIRS had advanced that 50–60 institutional investors would affiliate themselves with FCIRS and that the claims of those investors would amount to between 4.4% and 6% of the total damage. However, FCIRS had also not substantiated those numbers and the court found that it could not assess the representativeness of FCIRS on the mere basis of a percentage mentioned at the oral hearing as that percentage is unverifiable. The court saw no reason to give FCIRS the opportunity to further substantiate or explain its representativeness. According to the court, FCIRS could (and should) have done so in the writ of summons and FCIRS’s decision not to provide sufficient information at this stage of the proceedings was for its own risk and account. The assignment model remains an alternative In a case on the basis of the assignment model, Rep- sol had argued that the claims of Stichting Environ- ment and Fundamental Rights (SEFR) are inadmissible because SEFR would be abusing procedural law by circumventing the rules and safeguards established by the WAMCA (which rules prevented SEFR from bringing a claim in the Netherlands). However, the Hague District Court held that there are no grounds to assume that since an interest organisation can claim damages in a collective action on the basis of the WAMCA, it would no longer be possible for a large group of injured persons to bring a claim on the basis of the assignment model. The court found that the fact that the WAMCA procedure had not been followed and that SEFR and/or the claim did not meet the requirements thereunder does not mean that SEFR’s claims are inadmissible.
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