Collective claims for mass damage in the Netherlands

Since 1 January 2020, a representative organisation can claim damages in money on behalf of a large group of injured parties in the Netherlands, unless the group is too diverse for a single collective claim to work. That change came from the Act on the Resolution of Mass Damages in a Collective Action (Wet afwikkeling massaschade in collectieve actie, WAMCA). Before the WAMCA, a collective action could only obtain a declaration that conduct was unlawful; each injured party still had to bring an individual claim, or the parties had to reach a settlement for a court to declare it binding.

Mass damage is loss suffered by a large group of victims from the same cause: a defective product, a data breach, misleading financial information, an environmental incident, a cartel. In these situations the loss per person is often modest while the total is large, which is exactly why individual litigation usually does not happen.

What changed with the WAMCA?

The WAMCA gave representative organisations the power to claim money damages for the group as a whole, instead of only a declaration of unlawfulness. It also introduced strict admissibility requirements for the organisation bringing the claim, and a central register in which every collective action is published.

Who may bring a collective action?

Only a foundation or association that represents the interests concerned under its articles of association, and that meets strict admissibility requirements. It must be sufficiently representative of the group, have adequate governance and supervision, be transparent about its funding, and have made a genuine attempt to resolve the matter with the defendant before starting proceedings. The claim is entered in a central register, and other organisations get the opportunity to bring a competing action about the same event.

If several organisations come forward, the court appoints one of them as exclusive representative to conduct the action for the whole group. That rule exists to prevent parallel proceedings about the same facts.

Who is bound by the outcome?

Injured parties resident in the Netherlands fall within the class automatically and are bound unless they opt out within a period set by the court. Injured parties resident abroad generally have to opt in. As a result, a company facing a WAMCA action deals with the whole Dutch class at once, rather than with individual claimants one by one.

If the parties reach a collective settlement, the court can approve it and declare it binding on the class, again subject to a right to opt out.

What does this mean in practice?

For claimants, the WAMCA has made it realistic to pursue losses that would never justify an individual case on their own. For companies, it has made the Netherlands one of the more active jurisdictions in Europe for collective redress, and it has changed how mass incidents are assessed: exposure from a single event is now aggregated from the outset, not built up claim by claim.

Our detailed guide to class actions in the Netherlands sets out the procedure, the admissibility requirements and the case law in full.

In summary

• Since 1 January 2020, the WAMCA allows representative organisations to claim money damages for a group, not only a declaration of unlawfulness.
• Only a foundation or association meeting strict admissibility requirements can bring the claim, and it is registered centrally.
• Where several organisations compete, the court appoints one exclusive representative for the whole group.
• Dutch residents are in the class automatically (opt out); foreign residents generally have to opt in.
• The early decisions, on opting out, challenging admissibility, and the pre-litigation phase, matter most for both claimants and defendants.

Advice on collective actions

Whether you are considering joining a collective action, or your company has been served with one, the early decisions matter most: whether to opt out, whether to challenge admissibility, and how to handle the phase before proceedings begin.

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.