1. General description
Collective actions, on the basis of articles 3:305a-305d BW (Dutch Civil Code), have been adopted in 1994 (Law of 6 April 1994, Stb. 269). These articles describe the rules according to which an organisation can instigate proceedings for the protection of a group of similar interests. The interests can be idealistic (such as environmental, animal protection, protection of heritage, artistic goals) or material (such as investment loss).
The aforementioned provisions apply to all kinds of cases.
The proceedings can only started by an organisation that has the statutory aim of promoting the interests concerned (art. 3:305b BW); furthermore the interests have to be sufficiently alike in order to be bundled for efficient and effective legal protection. The court does not check materially whether the claim protects the interests of the persons concerned (art. 3:305a(2) BW). Representativeness is not required (Plazacasa case). An act cannot form the basis for a collective action if the individuals who are actually touched by the act contest using that act as the basis for the collective action (art. 3:305a(4) BW).
b. Opt-in; opt-out procedure
Formally the procedure only leads to a decision between parties. However, the judgment can have consequences for people whose interests are concerned with the decision. These may opt-out from the effect of the judgment by simply (without formal requirements) contesting that effect (art. 3:305a(5) BW). See in particular HR 26 februari 2010, LJN BK5756, NJ 2011/473 (Stichting Baas in Eigen Huis/Plazacasa BV)). This is only relevant when individuals do not wish (for example) to have an injunction regarding acts that they approve of; it does not touch on their individual right to damages as the collective action cannot lead to an award of damages.
c. Competent court
The normal rules of competence apply.
d. Participation of foreign plaintiffs
There is no limitation regarding nationality; foreign plaintiffs can in principle be part of the proceedings or among the group of interested persons. The only hindrance may be that a foreign organisation usually does not promote the interests of Dutch claimants and may therefore not meet the requirement that its statutory purpose covers the interests at stake in the procedure. However, an action regarding consumer protection can be instigated by a foreign organisation for protecting consumer interests as intended in art. 4(3) Directive 98/27/EC (see art. 3:305c BW). For an example see Rb Breda 9 July 2008, LJN BD6815.
e. Certification criteria
No certification criteria as such exists, except the aforementioned requirement for standing, that the organisation must according to its statutory description promote interests concerned in the action.
f. Main procedural rules
Before starting the action, the organisation must have attempted to reach its goal by discussion out of court (art. 3:305a(2) BW). The court can decide to refer the case to another court or combine it with another related case (art. 3:305a(6) BW).
g. Res judicata effect
The judgment has res judicata only between the parties in the procedure (and/or the claims adjudicated therein). Furthermore, the Hoge Raad has held that a declaration of law in such a procedure may serve as starting point in similar procedures started by other victims (HR 27 November 2009, LJN BH2162 (VEB/World Online), r.o. 4.8.2): this has for other victims, practically the same effect as res judicata. Hence a collective action may be useful as a step towards an individual award of damages.
h. Evidence/ discovery
The general rules regarding evidence and discovery apply.
i. Multi- stage process
There is a single-stage process.
4. Available remedies
Only an injunction or declaratory judgment can be obtained; damages cannot be obtained, except damages from the organisation itself.
5. Costs & funding
If following the collective action victims have to start subsequent individual actions to establish causation, liability and damages, they have to fully bear their own costs except where compensation is obtained under the general rules.
No specific funding is available; usually funding is obtained by individual contributions from individuals whose interest is at stake or who have an idealistic purpose in supporting the organisation.
6. Number of claims
The collective action has benn used in more than 180 cases during 2007-2012, which amounts to roughly 40 procedures per year, according to the published case law at rechtspraak.nl.
7. Particularities/ Problems if mechanism is used in cross- border cases
Collective action is to be instigated by representative organisations. It is suggested that some Claimstichtingen may actually not provide proper service for their clients, even if they are representative (see further II.3.8.).
The older law was criticised for lacking a requirement of representativeness. The new art. 3:305a(2) BW does contain a criterion, which demands some for of representativeness.
Merricks v Mastercard Inc : Collective Actions Re-invigorated...