NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Emille Buziau, Marit Balkema and Daphne Beunk, Florent B.V.
promotion of these interests is set down in its articles of association. The interests of those – both Dutch and foreign – individuals (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 intro- duces stricter requirements for ad hoc founda- tions ( 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 estab- lished in which all pending collective actions are recorded. The entry will trigger a period (in prin- ciple three months), during which other repre- sentative entities ( claimstichting ) may file collec- tive actions in respect of the same event(s), and similar facts and legal points. In the case of mul- tiple representative entities, the court will select the most suitable organisation as the “exclusive representative” 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 vari- ous causes of action, including antitrust infringe- ments, those based on contraventions of con-
sumer law, ideologically motivated class actions, breaches of environmental legislation, ESG mat- ters, climate change litigation and violations of the GDPR. In complex cases, the district court determines several litigation stages. Under the WAMCA, the collective action must have a sufficiently close connection to the Dutch jurisdiction. This is generally the case if: • the ad hoc foundation can make a plausible claim that the majority of persons whose interests the legal action aims to protect, have their habitual residence in the Netherlands; • the defendant against whom the legal action is directed is domiciled in the Netherlands and additional circumstances suggest a suf- ficient connection with the Netherlands; or • event(s) or circumstance(s) giving rise to the collective action took place in the Nether- lands. Insofar as collective (class) actions relate to events that took place before 15 November 2016, the previous regime, WCA, will apply (and damages cannot be claimed under Article 3:305a of the DCC). Once the representative interest group obtains a declaratory judgment, it is up to the individual group members to claim monetary compensation in individual proceed- ings. However, upon a positive judgment the representative interest group will typically enter into settlement negotiations with the defend- ant. Dutch law provides for court certification of damages in mass claim settlements (Collec- tive Mass Claims Settlement Act, also known as WCAM), as further illuminated in 8. Settlement . Directive 2020/1828 The EU Directive 2020/1828 on representa- tive actions for the protection of the collective interests of consumers (RAD) has been imple-
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