Almost 5 years ago, the Act on Collective Damages in Class Actions (Dutch acronym WAMCA) entered into force in the Netherlands. With the introduction of the WAMCA interest organizations have the possibility to seek collective monetary damages. In exchange, the WAMCA introduced stricter and additional admissibility requirements for interest organizations to comply with. In addition, the WAMCA introduces a new procedural regime for handling mass claims.
In this trend report, we reflect on various relevant developments of the first 5 years of WAMCA case law and present some lessons learned for the class action practice in the Netherlands.
Extensive use of the WAMCA for variety of purposes
Various class actions have been initiated under the WAMCA over the past 5 years, by different interest organizations covering a wide range of subjects. For instance, the Dutch State has repeatedly been targeted by interest organizations, often on ESG- and public interest related matters (we discuss the rise of ESG litigation in more detail in our trend report here).
The expanded possibilities for class actions have also contributed to the rise of ESG litigation in general. These include the climate change litigation by Milieudefensie against Shell and the greenwashing case by Fossielvrij NL against Royal Dutch Airlines KLM (please also see our blogs about the Shell case and the KLM case). We expect public interest class actions, including ESG litigation, to remain a hot topic in the upcoming years. Milieudefensie for example already announced another climate change case against ING.
In addition, claim organizations have brought various mass damages cases against corporates, for example on matters related to consumer protection. The various class action cases against car manufacturers regarding alleged defeat devices in diesel cars are a striking illustration. Interest organizations also brought many GDPR/privacy-related class actions against big tech companies (please see our earlier blogs here and here).
A final category worthy of note are the securities class action cases against aircraft manufacturer Airbus et al. as well as a recently initiated action against Stellantis (the holding above car manufacturers such as Fiat and Chrysler). The top holdings of both these parties are domiciled in the Netherlands.
A quantitative analysis of WAMCA-cases published in the online registry reveals that a large majority of cases (nearly 3 out of every 4) does not concern mass damages. As such, the rise in class actions activity in the Netherlands cannot solely be attributed to the new possibility to claim monetary compensation. The introduction of the WAMCA does seem to have driven an increase in interest in class actions among legal practitioners, and increasing numbers of globally operating claimant firms and litigation funders opened offices or became more active in the Netherlands over the past five years.
Debates on procedural aspects of the WAMCA
Although it has clearly not stifled the growth of class actions in the Netherlands, the introduction of a new class actions regime has not been without obstacles. So far, we have seen extensive debates between claimant and defence counsel on various procedural aspects of the WAMCA. Most prominent are discussions on the temporal applicability of the WAMCA, the new admissibility requirements and some discovery issues related thereto.
Since before the WAMCA, most class action cases in the Netherlands are handled in multiple phases and take several years to conclude. As a result, many cases brought under the WAMCA have not (yet) reached the merits phase of the proceedings. This effect is amplified by the extensive appeal possibilities in the Netherlands. Many aspects of the WAMCA therefore remain up for debate.
Applicable class actions regime: WAMCA or pre-WAMCA?
Under the pre-WAMCA regime, it is not possible to claim monetary damages (although fewer admissibility requirements apply compared to the WAMCA). As a result, the applicability of the WAMCA is pivotal to any collective monetary damages claim.
The WAMCA entered into force on 1 January 2020. The new regime is applicable to class actions initiated on or after 1 January 2020 and with respect to events that occurred on or after 15 November 2016. For events that occurred before 15 November 2016, the pre-WAMCA regime stil applies.
In case of a 'series of events' occurring both before and after 15 November 2016, the applicable regime (according to the parliamentary history) is the one in force at the time of the last event in the series of events to which the claim relates.
In various class actions, discussions arose on the applicable regime. These discussions centred on two main topics: (i) which 'event' determines which regime is applicable and (ii) what constitutes a 'series of events' or even a 'continuous event' stretching beyond the cut-off date? So far, various interesting judgments have been rendered regarding these questions.
- The joined cases against Airbus et al. have been initiated on behalf of Airbus investors. These investors allegedly suffered damages because they acquired or held publicly traded shares in Airbus on the basis of inaccurate, misleading or incomplete information between 2008 and 2020. In these cases, the The Hague District Court determined the applicable class action regime separately per defendant, depending on the events on which the claims against each separate defendant are based. The court then ruled that the relevant 'event' for determining the class actions regime was the failure to provide accurate information. The court found that this was a 'continuous event' (and not: a 'series of events') that (for certain defendants) took place both before and after 15 November 2016. The court determined that the WAMCA was applicable to this continuous event if the continuous event ended after 15 November 2016 for a particular defendant.
- Another example is the case on product liability for breast implants produced by biopharmaceutical company AbbVie. The producer's liability is based on introducing the product into the European Union. AbbVie introduced different allegedly harmful breast implants to the European market over a period of over thirty years, both before and after 15 November 2016.
- The Amsterdam District Court ruled that this is neither a continuous because nor is it a series of events: according to the court, each introduction to the Dutch market of a new type of implant is a separate event. The court held that the Dutch legislator intended the 'series of events'-exception to be reserved for exceptional cases. The court ruled therefore that - depending on the date the implants were first imported into the European market - the claims are partially governed by the WAMCA and partially by the pre-WAMCA regime.
- The Amsterdam Court of Appeal also recently handed down three
judgments (link, link and link) in separate diesel litigation cases
against different car manufacturers. The Amsterdam District Court
ruled in first instance that the development of an alleged illegal
defeat device is the initial, common and all-encompassing event on
which the claims of the claim organizations are based. According to
the district court, the actual introduction of vehicles allegedly
containing defeat devices into the Dutch market is merely a harmful
effect of the development of the alleged defeat device. Because
this relevant 'event' occurred prior to 15 November 2016,
the district court found that the pre-WAMCA regime was
applicable.
The court of appeal ruled otherwise and identified the introduction into the Dutch market of the vehicles allegedly containing defeat devices as the relevant 'event(s)' for determining the applicable class actions regime. The court of appeal then determined that the claims against the car manufacturers were partially covered by the WAMCA and partially by the preWAMCA regime, depending on the European emission regime in force on the date the vehicles were first introduced into the Dutch market. It remains to be seen whether the Supreme Court will uphold the court of appeal judgments in case of a potential cassation appeal.
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