In short: what did the Dutch Supreme Court decide?
The Dutch Supreme Court issued several long-awaited rulings on mass claims just before and after the summer:
These rulings clarify how the Dutch Act on Collective Damages in Class Actions (WAMCA) works in practice. Here are the key points.
- A claimant group's right to bring a case is judged at the date of the court's decision, not when the claim was filed.
- An organisation must show strong support from the group it represents before it can bring a claim.
- Claims can be bundled together if the case only needs a general ruling on unlawful conduct, also if the laws of several jurisdictions apply to claims.
- A court of appeal can send a case back to the court that first heard it, after overturning a ruling that the case was inadmissible.
- The WAMCA only applies to claims based on events after 15 November 2016. Claims based on earlier events still follow the previous rules and claims therefore need to be split.
Admissibility: When and how is it tested?
When is admissibility assessed?
The Dutch Supreme Court has ruled that a claimant organisation's right to bring a case is judged on the facts at the date of the court's decision. It is not judged on the facts at the date the claim was filed.
As a result:
- A claimant organisation can fix defects during the proceedings, also on appeal.
- The Dutch Supreme Court draws no distinction between the different admissibility requirements.
How to test whether a claimant organisation is representative?
The Dutch Supreme Court has tightened the representativeness test under Section 3:305a of the Dutch Civil Code, i.e. whether the claim organisation has sufficient support among the claim group it represents. Its test is stricter than the one applied by the Amsterdam Court of Appeal. Relevant aspects are:
- A non-negligible group of supporters is not enough on its own.
- It can matter whether the organisation's supporters are a fair cross-section of that group.
- It can also be relevant whether other claimant organisations support the claim.
Do the claims need to be similar enough to bundle together?
The Dutch Supreme Court has confirmed that claims can be bundled if a general ruling is sought that conduct was unlawful, without looking at individual circumstances. This is also possible if the laws of several jurisdictions apply to claims.
Can a WAMCA case be referred back to a lower court?
The Dutch Supreme Court has confirmed that class actions cases, whether under WAMCA or the previous rules, can be sent the case back by a Court of Appeal to the District Court if it erred on the admissibility requirements.
The same applies after the Dutch Supreme Court overturns a decision and sends the case to a court of appeal. That court of appeal can still send the case back to the first court. Sometimes several claimant organisations bring a claim together, and one or more of them do not meet the admissibility requirements. That ruling can be appealed by that claim organisation. If the court of appeal overturns that inadmissibility ruling, the Dutch Supreme Court considers it appropriate to send the case back to the first court.
Does the WAMCA apply to events before 15 November 2016?
No. The WAMCA only applies to claims based on events that took place after 15 November 2016.
As a general rule, if claims are brought that relate to events before and after that date, the claims have to be split, in which respect a claim based on events before 15 November 2016 is governed by the previous class action law. The WAMCA applies to claims based on events after that date. An exception is only possible where the facts underlying the claim are so closely intertwined that they cannot be separated.
Want to know more?
Our litigation team follows the developments on mass claims closely. Do not hesitate to contact us, if you have any questions regarding your specific case.
