News Update Class Actions

8 January 2021

On 1 January 2020, the Dutch Act on Collective damages claims ("WAMCA") entered into force. This act has made it possible for representative organisations to claim monetary damages in a collective action in the interests of an unnamed group of claimants. After one year of WAMCA, the number of ideologically motivated class actions has turned out to be double the number of damages class actions. Moreover, several WAMCA provisions still lack clarity which has led to differing court decisions on how to handle WAMCA proceedings. In this News Update, we discuss these first experiences with the WAMCA.

Number of WAMCA proceedings brought

During 2020, 16 proceedings on the merits were initiated under the WAMCA. Only five of these cases involved claims for money (as well as other types of claims). In the other 11 cases, the claims were mostly limited to declaratory and/or injunctive relief. Furthermore, at least seven injunctive relief proceedings were initiated. The exact number is uncertain, because it is not mandatory to enter the writ in the public register for collective actions in injunctive relief proceedings (in contrast to proceedings on the merits).

Damages actions

Although only a few damages actions were brought, they are significant. All of them are funded by commercial third-party funders. One of them concerns a GDPR claim against the Oracle group and the Salesforce group. The claim was initiated by the foundation, The Privacy Collective (TPC), which is claiming EUR 5 billion damages in total from each group, or EUR 500 per alleged victim, for the alleged misuse of personal data. TPC is also claiming EUR 100 per alleged victim for a data breach by Oracle.

Three damages actions concern cases against diesel car manufacturers. A foundation, Stichting Diesel Emissions Justice, initiated three separate proceedings against the Volkswagen, Daimler and Fiat Chrysler groups respectively, and against the importers and dealers of cars from these brands. Thereafter, two other foundations brought a collective claim against Daimler c.s. as well. Under the WAMCA, the court will judge the claims against Daimler c.s. in one consolidated procedure, after appointing one of the foundations as an exclusive representative (if the foundations have standing and the claims are admissible).

Most foundations requested that the court not disclose the contents of the funding agreement to the defendants. It remains to be seen how the court will assess the funding arrangements and to what degree it considers transparency essential in the light of the right of defence.

Actions for declaratory/injunctive relief

Proceedings in which the representative organisations limit their claims to declaratory and/or injunctive relief were also possible under the pre-WAMCA legislation. However, the WAMCA introduced stricter requirements for the standing of representative organisations and the admissibility of claims. The court can make an exception for claims of very little financial value that have an ideological purpose. The claim cannot be for money. In that case, a more lenient standing regime applies. In all the actions for declaratory and/or injunctive relief, the claims were presented as such. They concern, for example, posting intimate footage online without consent from the persons visible, insurance coverage for contraception for women over 18, breach of intellectual property rights, discrimination through ethnic profiling, and the nature of the contract between an online platform and the flex workers that find a job through that platform.

Court decision with international relevance

Several WAMCA injunctive relief judgments and interim judgments have been published. One injunctive relief judgment that is relevant from an international perspective concerned a Dutch foundation that claimed disclosure of documents from a large dredging company domiciled in the Netherlands. The events which triggered the action, allegedly involving the defendant's subsidiary, took place in Indonesia. The alleged victims also lived there. In this type of case, the WAMCA requires additional circumstances that suggest a sufficient relationship with the Netherlands. This WAMCA requirement was created specifically to prevent foreign claimants bringing disputes that are not or are only vaguely related to the Netherlands in Dutch proceedings. The court found there was no sufficient relationship with the Netherlands in this case and declared the claim inadmissible.

The new year will no doubt bring more interesting WAMCA developments. We also expect to have more news on the transposition into Dutch law of the EU Directive on representative actions, that entered into force on 24 December 2020. Member States must adopt and publish the implementing provisions by 25 December 2022 and apply them from 25 June 2023 (Articles 24 and 25 of the Directive).

Houthoff's large class action team has in-depth and broad experience advising and representing companies and financial institutions, and defending and settling class actions. We will keep you informed about the latest developments in Dutch class action law. Please feel free to contact Albert or Isabella if you have any questions.

For more information, please see our News Updates about the Act on collective damages claims and the EU Directive on representative actions. For experts' opinions on class actions in eight key jurisdictions, please see our Class Actions survey.

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