This article continues the series on private enforcement in the Netherlands.
New collective actions regime
On 1 January 2020 the new collective actions regime in the Netherlands entered into force. Under the new regime, representative bodies can bring collective damage actions for monetary compensation including for damages caused by cartels and other anticompetitive conduct. Collective actions can be brought before any district court in the Netherlands. The normal rules on local jurisdiction and venue apply. The representative entity must demonstrate, i.a., that the collective claim has a sufficiently close connection with the Dutch jurisdiction, which is the case if: (i) a majority of individuals, on whose behalf the action is brought, reside in the Netherlands, (ii) the defendant resides in the Netherlands, and additional circumstances indicate a sufficiently close connection with this jurisdiction or (iii) the event(s) giving rise to the claim took place in the Netherlands. The representative entity must fulfil several conditions and standards regarding its experience, governance, funding, and its non-profit nature. In addition, it must be sufficiently representative, i.e. encompass sufficient constituents. The entity may be established on an ad-hoc basis. In the case of competing entities, the competent court will appoint an exclusive representative and following this appointment individual class members must opt-out or find themselves bound to a decision resulting from the collective action. If such a collective action results in a settlement instead of a court decision, individuals are given another chance to opt-out. Affected individuals from outside the Netherlands may join the action on an ‘opt-in’ basis. In the first judgement under the new class action regime relating to ‘diesel emission scandal’ the Amsterdam court awarded a group of 150,000 buyers of Volkswagen cars a price reduction of between 1,500 and 3,000 Euros.
Collective settlement mechanism
The new collective actions regime co-exists with the previous, still valid, possibility for representative entities to enter into collective settlements with (allegedly) liable parties, and then (jointly) request the Amsterdam Court of Appeal to declare such settlement universally applicable. It should be noted that concluding such collective settlements and having these declared universally applicable may be pursued without ever initiating a collective action.
Claims aggregation by assignment
In addition to collective actions there is an established practice of claims aggregation by way of assignment of claims to a specialised litigation vehicle. This assignment model has often been used in the field of competition damage actions. The bundling at a material level allows for the creation of significant procedural and practical synergies. In particular, the damage quantification can be conducted using a broader and more robust data base. The right of litigation vehicles to claim the damage in their own name and the validity of the underlying assignment contracts, have been confirmed by various Dutch courts in the Air Cargo, Cartel du chlorate de sodium et Cartel de cire de paraffine cartel cases.
By Till Schreiber