Since 1 January 2020, a foundation or association can claim damages in the Netherlands on behalf of a whole group of injured parties in one procedure. This is possible under the Act on the Resolution of Mass Damages in a Collective Action (Wet afwikkeling massaschade in collectieve actie, WAMCA), but only if the organisation first passes strict admissibility requirements.
Dutch residents who fall within the group are included automatically unless they opt out. People who live abroad are generally only included if they actively opt in. Below we explain how a Dutch collective action works, who can bring one and what it means for businesses and for individuals, including expats.
What changed with the WAMCA?
Before 2020, a collective action could only lead to a declaratory judgment or an injunction, not to damages. The WAMCA made it possible to claim monetary compensation for the whole group in one procedure.
Under the old system, an organisation could ask the court to rule that a company had acted unlawfully, or to order it to stop a practice. Each victim then still had to claim their own damages separately. For small individual losses, that was rarely worth the effort, so many claims were never pursued.
The WAMCA amended Article 3:305a of the Dutch Civil Code (BW) and added a special procedure to the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), in Articles 1018b to 1018m Rv. The new rules apply to collective actions brought on or after 1 January 2020 concerning events that took place on or after 15 November 2016. For older events, the previous regime still applies, under which damages cannot be claimed collectively.
Collective actions have since been brought in areas such as data protection, competition law, financial products, consumer protection and product safety. For businesses active on the Dutch market, the risk of a large-scale claim has therefore become more concrete. For individuals, it offers a way to obtain compensation that would not be worth pursuing alone. Our article on collective claims in cases of mass damage discusses the background in more detail.
Who can bring a collective action?
Only a foundation (stichting) or association (vereniging) with full legal capacity can bring a collective action. It must show the court that it represents the interests of the group properly and meets the requirements of Article 3:305a BW.
The organisation must, among other things, be sufficiently representative, taking into account the size of the group it represents or the size of the claims. It must have a supervisory body, suitable mechanisms for the involvement of the injured parties, sufficient financial resources to pay the costs of the proceedings and sufficient control over the claim. The directors involved in setting up the organisation may not have a direct or indirect profit motive. The organisation must also publish information about its governance, funding and the costs for participants on a website.
These requirements aim to protect the group against organisations that act mainly in the interest of investors. If a third-party litigation funder is involved, the court checks that the funder does not control the proceedings and that the financial arrangements are reasonable.
Does the claim need a connection with the Netherlands?
Yes. Under the so-called scope rule, a collective action is only admissible if the claim has a sufficiently close connection with the Dutch legal sphere. That is the case, for example, if most of the persons concerned live in the Netherlands, if the defendant is based here, or if the events took place here.
The organisation must also first try to resolve the matter through consultation with the defendant. The law regards a period of two weeks after the defendant received a request for consultation as sufficient for this purpose.
How does a WAMCA procedure run?
A WAMCA procedure takes place in stages. The court first decides whether the claim and the organisation are admissible, then appoints an exclusive representative, and only after that examines the merits of the claim.
Registration and competing claims
After issuing the writ of summons, the claimant must register the action in the central register for collective actions kept by the judiciary (Article 1018c Rv). Other organisations then have three months to bring a collective action about the same events, a period the court can extend. In this way, all claims about the same events are dealt with in one procedure.
The admissibility phase
The court then examines whether the organisations meet the requirements of Article 3:305a BW. The defendant can put forward arguments on representativeness, governance and funding. The court also carries out a first check of the claim: an action that is clearly unfounded at first sight can be declared inadmissible at this stage. This phase alone often takes a year or longer.
The exclusive representative
If several organisations are admitted, the court appoints one of them as the exclusive representative (Article 1018e Rv). That organisation conducts the proceedings on behalf of the whole group. The court also defines the group and the scope of the claim precisely, so that everyone knows who is covered.
The merits and the damages
Only after the opt-out period does the court deal with the substance of the case: did the defendant act unlawfully or breach a contract, and is it liable? If so, the court can determine a collective damages scheme (Article 1018i Rv), for example with categories of injured parties and amounts per category. Before that, the court can give the parties an opportunity to negotiate a settlement.
Limitation periods remain relevant throughout. If you are considering your own claim, keep an eye on the statute of limitations on claims in the Netherlands and interrupt the period in writing where necessary.
Are you automatically part of a Dutch class action?
If you live in the Netherlands and belong to the defined group, you are included automatically, unless you opt out in time. If you live abroad, you are generally only included if you actively opt in.
The opt-out system for Dutch residents
After the exclusive representative has been appointed, the court sets a period of at least one month in which members of the group can opt out (Article 1018f Rv). The judgment is published, and the exclusive representative must inform the known members of the group. You do not need to register to be included.
If you do nothing, you are bound by the outcome of the case. A judgment or approved settlement then also applies to you, and you can no longer bring your own case about the same events. Staying in means you may receive compensation without having to litigate yourself. Opting out keeps your right to sue individually, which may be the better choice if your own damage is unusually high or differs from that of the group.
The opt-in rule for people living abroad
If you do not live in the Netherlands, you are only part of the collective action if you inform the court, within the period and in the manner set by the court, that you wish to join. The court may decide otherwise at the request of a party, for example if a clearly defined group of foreign victims would otherwise be left out.
Take a practical example. A company with its European headquarters in the Netherlands suffers a data breach that affects users across Europe, and a Dutch foundation starts a WAMCA procedure. A user living in Eindhoven is included automatically and only needs to act if they want to opt out. A user who lives in Berlin is not included unless they actively opt in before the deadline.
If you live abroad and do not opt in, you will not benefit from a judgment or settlement in the Dutch procedure. Your right to bring your own claim, in the Netherlands or elsewhere, generally remains, subject to limitation periods. Expats who have recently moved should check where they were living at the relevant time and what the court’s decision says about the group.
Which businesses face collective claims?
Any business can face a collective action, but businesses with many customers and standardised practices are most exposed. A single practice that affects thousands of people in the same way is the typical basis for a claim.
In practice, collective actions often concern large technology companies and digital platforms, for example about the processing of personal data or the terms imposed on users and app developers. Banks and investment firms face claims about financial products, unfair terms or charges. Car manufacturers and other producers face claims about product defects, emissions and cartels. Airlines and travel companies face claims about cancellations, refunds and additional charges.
In competition cases, the claims usually concern price increases passed on to customers as a result of a cartel or an abuse of a dominant position. These cases often involve complex economic evidence and take several years.
How should a business respond to a collective claim?
Take the claim seriously from the first letter. The admissibility phase is often the best moment to challenge a collective action, but a sound defence on the merits and a realistic view of a settlement are just as important.
Challenging admissibility
A defendant can argue that the claimant organisation does not meet the requirements of Article 3:305a BW. Relevant questions are whether the organisation genuinely represents the group, whether its supervisory body is independent, whether it has enough funds, and whether a litigation funder has too much influence or too large a share of any compensation. In practice, courts often ask to see the funding agreement in order to assess these points. A successful challenge can end the case at an early stage.
Also check whether the scope rule is met and whether the claim relates to events on or after 15 November 2016. Claims that do not meet these conditions fall outside the WAMCA regime.
Communication and reputation
A collective action often attracts media attention. Communicate clearly, consistently and factually, and coordinate your public statements with your legal strategy. Where the claim concerns personal data, a documented response to data breaches shows that you took your obligations seriously.
The value of a settlement
A WAMCA procedure that runs to a final damages judgment takes years and is expensive for both sides. Many parties therefore look for a settlement, for example once the court has ruled on liability but before the costly damages phase begins. At that point both sides know where they stand on liability, while the amount is still open.
The table below summarises the stages and the main considerations for a defendant.
| Stage | What the court decides | Considerations for the defendant |
|---|---|---|
| Admissibility | Whether the organisation and the claim meet the requirements of Article 3:305a BW. | Examine representativeness, governance, funding and the scope rule; an early dismissal is possible. |
| Liability | Whether the defendant acted unlawfully or breached a contract. | Present a strong substantive defence, manage communication and assess the options for a settlement. |
| Damages | The compensation owed to the group, often through a damages scheme with categories. | Complex economic analysis; the costs and uncertainty often make this a logical moment to settle. |
How is a collective settlement approved?
A collective settlement is only binding on the group once the court has approved it. The court checks whether the compensation is reasonable and whether the interests of the group are sufficiently protected.
Within a WAMCA procedure, the court that hears the case assesses the settlement (Article 1018h Rv). If it approves the settlement, the members of the group who did not opt out earlier get a second opportunity to opt out. Anyone who does not use that opportunity is bound by the settlement.
There is also a separate route outside the WAMCA procedure. Under the Act on the Collective Settlement of Mass Claims (Wet collectieve afwikkeling massaschade, WCAM), parties that have reached a settlement can ask the Amsterdam Court of Appeal to declare it binding on the whole group (Article 7:907 BW). Here too, members of the group can opt out. This route has been used for international settlements for many years.
For a defendant, court approval gives finality: members of the group who did not opt out cannot later bring individual claims about the same events. For individuals, it means that the compensation has been reviewed by a court, but also that there is a deadline for deciding whether to stay in.
Can a foreign company be sued in the Netherlands?
Yes. A company based abroad can be sued in a Dutch court if that court has jurisdiction, for example because the damage occurred in the Netherlands. The claim must also meet the WAMCA scope rule.
Within the EU, jurisdiction is mainly determined by the Brussels I bis Regulation. Under Article 7(2) of that Regulation, a claim based on a wrongful act can be brought before the courts of the place where the harmful event occurred. The Court of Justice of the European Union (CJEU) has applied this rule to cartel damages claims, which means that buyers in the Netherlands can often sue in a Dutch court. For companies outside the EU, Dutch rules on international jurisdiction apply, which lead to similar results in many cases.
A company from outside Europe whose conduct affects users in the Netherlands can therefore face a WAMCA claim here. Whether a Dutch court actually has jurisdiction depends on the facts of each case.
What should you do if a collective action concerns you?
First check whether you fall within the group as defined by the court, and note the deadline for opting out or opting in. Then decide whether staying in or going your own way better protects your interests.
The court’s decision on the exclusive representative describes the group and the period for opting out. The exclusive representative must also publish this information, usually on its website and in newspapers. Keep any documents that show your loss, such as contracts, invoices, account statements or correspondence with the company. You may need them later to claim your share under a settlement or damages scheme.
Compare the options carefully. Staying in costs you little effort, but you depend on the choices of the organisation and you share in the result on the same terms as others. Opting out gives you control, but you then bear the costs and risks of your own procedure. For a small claim, staying in is usually the practical choice. For a large or unusual claim, it can be worth taking advice before the deadline passes.
Be cautious with organisations that approach you with promises of high compensation or ask for an upfront payment. Check whether the organisation is actually a party to the procedure in the central register and what share of any compensation it will keep.
How long does a WAMCA case take and what does it cost?
A fully litigated WAMCA case usually takes several years. The admissibility phase alone often takes a year or more, and the liability and damages phases can each add years.
For a defendant, the costs include lawyers’ fees over a long period, experts such as economists in competition cases or technical experts in product cases, and the internal time spent on gathering documents and information. If the defendant loses, it must pay the damages awarded to the group.
The costs order is also different from ordinary proceedings. In a WAMCA case, the court can order the losing party to pay the reasonable and proportionate legal costs of the other party (Article 1018l Rv), which can be considerably higher than the usual fixed-rate costs order. Many claimant organisations are financed by litigation funders, who receive a share of any compensation in return.
For individuals, participation is usually free of charge, but the organisation or its funder may deduct a percentage of the compensation. Check the organisation’s website for its participation conditions before you decide whether to stay in or opt out.
The statutory rules can be found in Article 3:305a of Book 3 of the Dutch Civil Code and Articles 1018b to 1018m of the Dutch Code of Civil Procedure. For practical help with other legal matters in the Netherlands, see our overview of legal professionals in the Netherlands.
In summary
- Since 1 January 2020, a foundation or association can claim damages for a whole group under the WAMCA, for events on or after 15 November 2016.
- The organisation must meet strict requirements on representativeness, governance, funding and connection with the Netherlands (Article 3:305a BW).
- Dutch residents are included automatically unless they opt out; people living abroad generally have to opt in.
- A collective settlement binds the group only after court approval, with a second chance to opt out.
- Defendants often have the best opportunity to challenge the claim in the admissibility phase, and many cases end in a settlement.
Frequently asked questions
Do I have to sign up to take part in a Dutch collective action?
Not if you live in the Netherlands and belong to the group defined by the court: you are included automatically. If you live abroad, you generally have to opt in within the period set by the court.
Can I still bring my own claim?
Yes, if you opt out in time. If you are a Dutch resident and do nothing, you are bound by the outcome of the collective action and can no longer sue individually about the same events.
How long does a WAMCA case take?
Usually several years. The admissibility phase alone often takes more than a year, followed by the liability and damages phases. Many cases end earlier with a settlement.
Who pays the costs of a collective action?
The claimant organisation bears its own costs, often with the help of a litigation funder who receives a share of any compensation. The losing party can be ordered to pay the reasonable and proportionate costs of the other side.
Can a foreign company be sued under the WAMCA?
Yes, if a Dutch court has jurisdiction and the claim has a sufficiently close connection with the Netherlands, for example because the damage occurred here or most victims live here.
Law & More advises businesses facing collective claims and individuals who want to know whether a collective action affects them. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
How Law & More can help you with this is explained on our corporate lawyer page.
