NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
3.5 Rules of Service The claimant is responsible for service of the sum- mons. A bailiff serves the summons to the defendant with at least seven days’ notice prior to the date of court appearance. Subsequently, the claimant must file the served summons with the Court Registrar at the latest on the last business day prior to the date of formal court appearance as stipulated in the sum- mons. The service of judicial documents across national bor- ders is regulated primarily by the 1965 Hague Con- vention and the EU Regulation No 2020/1784 (the “Service Regulation”). If the defendant resides in either an EU member state, subject to the Service Regulation, or a contracting state to the 1965 Hague Convention, a minimum peri- od of four weeks should be observed between service of a writ on a defendant and the date of formal court appearance. For defendants residing in other states, a minimum period of three months applies. 3.6 Failure to Respond If the defendant fails to appear in court on the date of formal court appearance, a claimant may obtain a default judgment. In that case, the court first verifies whether the terms and formalities of service of pro- cess have been fulfilled and whether all requirements regarding the summons have been met. If this is the case, the court grants leave to proceed in default of the defendant’s non-appearance and the claim is awarded unless the court considers the claim to be prima facie unlawful or unfounded (Section 139, DCCP). As long as the final default judgment has not been rendered, the defendant may still appear in court and defend its case. A defendant may apply to set aside a default judgment within four weeks after the judg- ment has been pronounced (eight weeks if they are domiciled abroad). 3.7 Representative or Collective Actions Collective (class) action procedures are well devel- oped in Dutch law. Injured parties can bundle their claims by giving one person, which can also be an ad hoc foundation or association ( claimstichting ),
power of attorney to act on behalf of all of them (the aggrieved parties could also assign their claim to one such person, which then brings the claim in its own name); alternatively, they can initiate a collective action based on Section 3:305a of the DCC (WCA). The Section 3:305a of the DCC route enables a foundation or association with full legal capacity (a “representative interest group”) to institute an action aimed at protecting similar interests of other individ- ual persons to the extent that the promotion of these interests is set down in its articles of association. The interests of those – both Dutch and foreign – individu- als (group members) should be of such a nature that they are capable of being bundled, thus expediting the efficient and effective legal protection of the interested parties. As a prerequisite to lodge such action, the representative interest group must furnish proof that it has first attempted – in vain – to achieve its goal through dialogue with the defendant. WAMCA On 1 January 2020, the Settlement of Large-Scale Losses or Damage Act (also known as WAMCA) came into effect. The WAMCA reshaped Dutch class actions, introducing the possibility for representative entities to also seek damages in a Dutch collective action procedure, for claims which relate to events occurring on or after 15 November 2016. This Act also introduces stricter requirements for ad hoc foun- dations ( claimstichting ) to have standing, as well as procedural changes to enhance the efficiency and effectiveness of the proceedings. Under the WAMCA a central (public) register is established in which all pending collective actions are recorded. The entry will trigger a period (in principle three months), dur- ing which other representative entities ( claimsticht- ing ) may file collective actions in respect of the same event(s), and similar facts and legal points. In the case of multiple representative entities, the court will select the most suitable organisation as the “exclusive rep- resentative” for the group/class of aggrieved parties represented in the collective action. The Dutch class members have the opportunity to opt-out and foreign class members can opt-in. In practice, the new procedure applies to various causes of action, including antitrust infringements,
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