On 1 January 2020, the Settlement of Large-scale Losses or Damage (Class Actions) Act (in Dutch abbreviated as the WAMCA) entered into force. This Act provides for the possibility to not only request a declaratory decision, but also claim damages in a collective action. Two-and-a-half months later, the first collective damages action is there. Stichting Diesel Emissions Justice (SDEJ) has filed a collective mass tort claim for 8.5 million Dutch and European car owners in respect of the Volkswagen Dieselgate. This appears from the Central register for collective actions.
On the basis of the WAMCA, a collective damages action can be brought on an opt-out basis for Dutch parties. For non-Dutch parties, the proceedings shall in principle be brought on an opt-in basis, but the court may order that also these proceedings can be brought on an opt-in basis (we note that SDEJ did not request the court to do so).
In order for a collective damages action to be admissible, the Dutch courts must have jurisdiction and the case must have a sufficiently close connection with the Dutch jurisdiction. The latter is the case if:
- the majority of the parties for which the collective action is brought is Dutch;
- the collective action is brought against a Dutch defendant and the case otherwise also has a sufficiently close connection with the Dutch jurisdiction; or
- the event to which the case relates took place in the Netherlands.
The substantive scope of the WAMCA is unlimited. A collective damages action can brought in relation to any event that affects the interests of the parties for which the collective action is brought in a similar way. Those parties can be both natural persons as well as legal entities.
The temporal scope of the WAMCA is limited. The new regime has immediate effect, but does not apply to: (i) collective actions that have been brought before 1 January 2020, and (ii) collective actions that are brought after 1 January 2020 insofar as they relate to an event which took place before 15 November 2016. However, in case of a series of events that took place both before as well as after 15 November 2016 and that constitutes a single and continues tort, like a cartel, we believe that the new regime should apply to the entire series of events.
Another distinctive feature of the WAMCA is that if more than one collective damages action is brought in relation to the same event, the court will appoint the most appropriate claimant as the so-called exclusive representative. The exclusive representative conducts the proceedings in the different collective damages actions and represents all the parties for which these have been brought. In its writ of summons, SDEJ has requested the Amsterdam District Court to appoint it as exclusive representative.
Interesting to note is further that in its writ of summons, SDEJ is aiming at having this mass tort claim dealt with by the Netherlands Commercial Court (the NCC). The NCC provides for the possibility to litigate international commercial disputes in English. Another benefit is that the NCC allows for the electronic filing of submissions. The NCC decides in cases in which all parties have agreed thereto.
Prior to the entry into force of the WAMCA, Dutch law already provided for a tried and tested possibility to settle mass tort claims collectively, i.e. the assignment model. In that model, the parties for which the proceedings will be brought assign their claims to a foundation, after which that foundation conducts the proceedings. The assignment model is for example often used in cartel damages actions. After the entry into force of the WAMCA, the assignment model remains attractive. We would be happy to advise you further in choosing between a procedure on the basis of the WAMCA and a procedure on the basis of the assignment model.