The Dutch Civil Code ("DCC") has provided for a collective action system since 1994 (Article 3:305a DCC). A collective claim can be brought in the interests of a group of natural or legal persons ("beneficiaries"), and in the general interest. Any claim can be brought, including declaratory relief, but the possibility of claiming damages was not introduced until 2020. A collective claim can also be dealt with in preliminary relief proceedings (within its procedural limits).

The Act on redress of mass damages in a collective action ("WAMCA") has introduced in Articles 1018b-1018m Dutch Code of Civil Procedure ("DCCP") the possibility of claiming damages in a collective action, stricter requirements for the standing of a claim organization and the admissibility of the claim, and procedural changes to enhance the efficiency and effectiveness of collective proceedings. The WAMCA applies to collective actions that are brought on or after 1 January 2020 and pertain to events that took place on or after 15 November 2016.

The standing and admissibility requirements under Article 3:305a DCC and Articles 1018b-1018m DCCP (WAMCA) are briefly as follows:

• The collective claim is brought by a foundation or association with full legal capacity in its own name. This claim organization can be a special-purpose vehicle incorporated with the sole objective of initiating collective action proceedings.
• The collective action aims to protect the interests of the beneficiaries.
• The represented interests are sufficiently similar, so they can be bundled.
• The represented interests are covered by the organization's object as articulated in its articles of association.
• The represented interests are sufficiently safeguarded. This is the case if the claim organization:
  • adequately represents the beneficiaries; and
  • fulfills the following criteria, which do not apply if the action is brought for an idealistic purpose and has a very limited financial interest, or if the nature of the claim or the beneficiaries requires a 'lighter' standing regime ("public interest action"):
    • its governance structure meets certain requirements;
    • it has sufficient funding at its disposal and sufficient control of the legal action; and
    • it has sufficient experience and expertise.
  • The claim organization’s board is not motivated by profit which is made through the organization.
  • The collective action has a sufficiently close relationship with the Netherlands.
  • The claim organization has sufficiently tried to engage with the defendant before bringing its action.
  • The collective action is more efficient and effective than bringing an individual claim: there must be sufficient commonality of factual and legal questions at issue, a sufficient number of beneficiaries (no minimum) and a sufficiently large financial interest if the claim is for money.
  • It is not summarily apparent that the claim is defective.

Details of WAMCA proceedings are:

• The writ bringing the collective action is entered into a public register for collective actions. Separate collective actions for the same events and similar questions of law and fact will be consolidated and dealt with by the same court.
• If more than one claim organization brings a collective action pertaining to the same damage-causing event or events, these collective actions are consolidated, and the court will appoint in principle one of the claim organizations as an exclusive representative for all parties. The other claim organizations remain parties to the proceedings, provided they have standing. The court also determines the content and the scope of the claims and defines the group of beneficiaries for whom the claims are brought.
• The court will in principle set a period for the parties to negotiate a settlement agreement. A settlement agreement must be approved by the court for it to be binding on the beneficiaries. The court will not approve the settlement if, for example, the amount of damages is not reasonable or if the beneficiaries' interests are not sufficiently safeguarded.
• If no settlement is reached and the defendant is held liable, the court is allowed, where legally possible, to determine damages according to the categories of claimants (damages scheduling). The court can order the exclusive representative and the defendant to submit a proposal to that end.

Opt-out/opt-in and binding force under the WAMCA:

• After the exclusive representative has been appointed, beneficiaries residing in the Netherlands can opt-out and beneficiaries residing outside the Netherlands can opt-in, unless the court has ordered that an opt-out system applies for beneficiaries residing outside the Netherlands as well. The opt-out/opt-in period is at least one month.
• A judgment will be binding on all beneficiaries that opted in or did not opt-out after the appointment of the exclusive representative.
• After a collective settlement has been approved by the court, beneficiaries who do not want to be part of the settlement class can opt-out. The opt-out period is at least one month.
• A settlement agreement will be binding on all beneficiaries that did not opt-out after court approval of the settlement.
• The above applies to all collective claims brought in proceedings on the merits. However, in public interest actions for injunctive relief, the court may decide not to apply the opt-out/opt-in and related information requirements (see "Public Information/Database of Representative Actions", section 4).

Directive (EU) 2020/1828 on representative actions for consumers ("RAD") has been implemented as a part of the WAMCA, which covers most of the RAD's requirements. The legislature has chosen to amend the WAMCA only as far as necessary to comply with the RAD and, with a few exceptions, only for collective actions that fall under the RAD's scope ("RAD representative actions"). The Dutch implementation Act (Implementatiewet richtlijn representatieve vorderingen voor consumenten, "Implementation Act") was published on 23 November 2022 (Staatsblad 2022, 459) and entered into force on 25 June 2023.

Dutch law also provides for a specific collective settlement regime on an opt-out basis, introduced in 2005 by the Dutch Act on collective settlement of mass damages (Wet collectieve afwikkeling massaschade, “WCAM"). The parties to an out-of-court settlement agreement (representative organizations and parties paying compensation) can request the Amsterdam Court of Appeal to declare the settlement binding on a class or classes of persons. As yet, only nine WCAM settlements have been submitted and approved. The RAD did not require any change to the WCAM.

In principle, all claims can be brought for all types of claimants (consumers, small and medium businesses and large companies) under the WAMCA. Claim organizations can seek all sorts of redress measures, including damages, price reduction, contract termination and reimbursement of the price paid, specific performance and declaratory relief. However, the commonality requirement may prevent the court from awarding a certain type of claim in a particular action. The RAD did not require any change on this point.

In general, the unsuccessful party must pay a limited amount of costs and lawyers' fees. The successful party is entitled to reimbursement of the court registry fee, the costs of service of the writ, costs of witnesses and experts, and a fixed (limited) amount for lawyers' fees. Extrajudicial costs are considered as damage and must be claimed as part of the claim on the merits (Article 6:96 DCC).

Under the WAMCA, the court can deviate from the usual limited cost order as follows:

• if the court finds that the defectiveness of the claim was summarily apparent, the claim organisation can be ordered to pay up to a maximum of five times the usual fixed amount (Article 1018l(1) DCCP); and
• if damages are awarded, the defendant can be ordered to pay all reasonable and proportionate court costs and other costs that the claim organisation has incurred, except where this would cause injustice (Article 1018l(2) DCCP).

According to the Minister for Legal Protection, Article 6:96 DCC and Article 1018l(2) DCCP offer the possibility of having the litigation funder's fee paid by the defendant. There is no court decision on this issue yet.

The RAD did not require any change.

The Dutch legislature transposed Article 22(1) RAD by interweaving it with the existing WAMCA transitional law, which resulted in a rather unclear provision. As mentioned in 1.2, WAMCA transitional law uses a cut-off date of 15 November 2016: collective actions cannot be brought under the WAMCA if they relate to events that occurred before that date. The Implementation Act seems not to apply this cut-off date to RAD representative actions, in line with the RAD, but the text itself is not clear. However, according to the explanatory memorandum, RAD representative actions can be brought for events that occurred before 25 June 2023. The transposing provision also states that the Implementation Act does not apply to collective actions brought before 25 June 2023.

Article 22(3) and Article 16 RAD did not need any transposition, as Dutch law already provided for the collective interruption of limitation periods. The Dutch Supreme Court had already decided that a claim organisation can interrupt the limitation periods of all types of individual claims on a collective basis by initiating collective proceedings or by sending the defendant a written notice in which it unambiguously reserves the beneficiaries' right to performance. The WAMCA stipulates that beneficiaries that do not participate in the collective action must interrupt the limitation period of their claim individually within six months of opting out.

The RAD gives Member States the choice between an opt-in or an opt-out system for domestic actions. The WAMCA provides for an opt-out system if beneficiaries reside in the Netherlands (see 1.5), so the WAMCA did not require amendment on this point.

The RAD requires consumers that do not reside in the Member State in which the collective action is brought to opt in. Under the WAMCA, the default system for beneficiaries that do not reside in the Netherlands is to opt in. However, the court can opt for an opt-out regime (see "Representative Action Mechanisms", section 5). The Implementation Act removes this option for RAD representative actions.

Furthermore, to comply with Article 9(4) RAD, the Implementation Act ensures that consumers that reside outside the Netherlands and opt-in to a Dutch RAD representative action have to notify the court registry that their interests are not represented in a collective action or individual action regarding the same factual and legal questions and against the same defendant in another Member State or EEA state. The Implementation Act does not contain a similar provision for consumers that reside in the Netherlands because this is not consistent with an opt-out system. Consequently, double representation cannot be avoided in that case but will have to be dealt with once the court ascertains the narrowly defined group in the admissibility phase of the proceedings.

Under the WAMCA, foundations and associations with full legal capacity can start collective proceedings. Foundations are often ad hoc claim vehicles (see "Representative Action Mechanisms", section 3). Since the RAD allows for qualified entities that start domestic actions to be ad hoc organisations (Article 4(6) RAD) that can be 'designated' by a court when declaring the representative action admissible (see recital 28), the WAMCA did not need to be amended on that point. In domestic actions, the WAMCA standing requirements apply, with three additions (see "Class Criteria/Certification", section 2).

Since qualified entities that bring cross-border actions must comply with the requirements laid down in Article 4(3) RAD, the Implementation Act introduces specific provisions on that matter in Article 3:305c DCC (for cross-border actions brought by foreign qualified entities) and Article 3:305e DCC (for cross-border actions by Dutch qualified entities).

Article 3:305c DCC only contains requirements that relate to the admissibility of the specific action, since the standing of listed foreign qualified entities must be assumed (Article 6(3) RAD). See "Cross-Border Actions", section 2 for these requirements.

Article 3:305e DCC contains the standing criteria that apply to Dutch qualified entities that wish to be listed to bring cross-border actions. It largely refers to Article 3:305a DCC as the WAMCA already provides for most of the requirements but adds three RAD criteria (see "Class Criteria/Certification", section 3). The Minister for Legal Protection will designate the association or foundation that wishes to be listed as a qualified entity to bring cross-border actions and complies with the RAD's requirements.

The WAMCA standing and admissibility requirements are mentioned in "Representative Action Mechanisms", section 3. The court can dismiss a collective action that is manifestly unfounded but has rarely done so to date.

The WAMCA requirements apply to domestic RAD representative actions. To comply with the RAD, the Implementation Act adds three criteria:

• The WAMCA obliges the claim organization to have a publicly accessible internet page on which an overview of the status of ongoing proceedings is published. The Implementation Act adds that the outcome of the proceedings must also be published (cf. Article 13(1)(c) RAD). This requirement applies also to collective actions that are not brought under the RAD.
• The financier cannot be a competitor of, nor dependent on, the defendant (Article 10(2)(b) RAD). This addition only applies to RAD representative actions.
• A claim organization that brings a public interest RAD representative action has to comply with two requirements that do not apply to public interest WAMCA actions (see "Representative Action Mechanisms", section 3). It must have:
  • sufficient resources to bear the costs of the proceedings, with sufficient control of the claim by the claim organization;
  • a publicly accessible internet page on which an overview of the status of pending proceedings and their outcome is published, as well as an explanation of the calculation of the beneficiaries' contribution, if a contribution is sought.

Dutch claim organizations that bring cross-border RAD representative actions have to comply with the RAD's standing requirements (Article 4(3) RAD). Most of these criteria are already stipulated in the WAMCA. In addition, the Implementation Act requires that the qualified entity have a publicly accessible website on which the following information is published:

• the claim organization has been active in protecting consumers' interests according to its articles of association for 12 months before bringing the action (Article 4(3)(a) RAD);
• the sources of its funding in general (Article 4(3)(f) RAD); and
• the claim organization is not the subject of insolvency proceedings and is not declared insolvent (Article 4(3)(d) RAD).

The WAMCA requires the claim organisation to have sufficient resources to bear the costs of the proceedings and to have control over the action. This requirement applies to all collective actions except for public interest actions. However, a RAD representative action will always have to comply with this provision irrespective of whether it is bringing a public interest claim (see 7.2).

According to the Dutch legislature, this requirement covers all the RAD's criteria on Third-Party Litigation Funding ("TPLF") except for Article 10(2)(b) RAD. Therefore, the Implementation Act adds the requirement that the financier cannot be a competitor of, nor dependent on, the defendant (see "Class Criteria/Certification", section 2). The claim organization must mention in its writ that this criterion is fulfilled. The notions 'competitor' and 'dependent' will have to be interpreted restrictively according to the explanatory memorandum on the Implementation Act. Funding of an RAD representative action against a defendant that is not a competitor of the funder, but a competitor of the funder's holding company or investment fund, is allowed.

If the court finds that the claim organisation does not comply with these criteria, it can deny the claim organisation standing. However, according to the explanatory memorandum, the court can also decide to allow the claim organisation to amend the funding arrangement or to try and find another funder.

In addition to the above, there is a body of soft law that provides guidelines for the courts on how to assess the standing of claim vehicles (the Claim Code 2019). According to one of the guidelines on TPLF, the claim organisation must be able to submit the funding arrangement to the court if ordered to do so, but it may try to prevent the defendant from having a copy as well.

The submission of funding arrangements has recently been discussed in a few cases. In two of them, the court ordered the claim organisations to submit the arrangement to the court and the defendant. However, the claimants were allowed to redact certain provisions (commercial arrangements and arrangements between the claim organisations and the lawyers).

The RAD did not lead to any amendments in the WAMCA settlement regime (see "Representative Action Mechanisms", sections 4-6).

Claim organizations that bring a collective action under the WAMCA must enter the writ in a public register within two days of the day of the summons, under penalty of inadmissibility (Article 1018c(2) DCCP). However, they are not obliged to enter the writ for preliminary relief proceedings. Judgments are also published in the register. These requirements also apply to RAD domestic representative actions and cross-border actions brought by a foreign entity before the Dutch court (cf. Article 14(1) RAD).

The WAMCA's standing requirements include the publication of the information at (a) to (i) below on the claim organization's public website (cf. Article 13(1) RAD). These requirements all apply to RAD domestic actions, except for public interest RAD domestic actions, to which only (g) and (h) apply.

1. the claim organization's articles of association;
2. the claim organization's management structure;
3. the supervisory body's most recently adopted annual outline report on its supervision;
4. the most recently adopted board report, which must be published within eight days of its adoption;
5. the remuneration of directors and members of the supervisory body;
6. the claim organization's objectives and working methods;
7. an overview of the status of pending proceedings and – as introduced by the Implementation Act – their outcome;
8. where applicable, information on the calculation of the contribution sought from the beneficiaries;
9. an overview of how beneficiaries can join the claim organization and how they can terminate their participation.

The interim judgment in which the court appoints the exclusive representative (see "Representative Action Mechanisms", section 4) is available in the court registry and is published in the public register for collective actions. After hearing the parties, the court also determines the opt-out/opt-in possibilities, the information to be published on the collective action, and the channels to be used for this purpose. Known beneficiaries are in principle informed by letter. The information also has to be published in a newspaper. Publication must take place as soon as possible. The duty to inform rests in principle on the exclusive representative (cf. Article 13(2) RAD).

The announcement of an approved settlement or – as introduced by the Implementation Act – of the refusal of approval, must be published on the exclusive representative's website and in the register for collective actions. The exclusive representative must in principle inform the beneficiaries of the approved settlement in a manner determined by the court (but the court could order the defendant to do so to meet the requirement of Article 13(3) RAD). Known beneficiaries are in principle informed by letter. The information must also be published in a newspaper. The publication has to take place as soon as possible.

The announcement of the judgment in which damages have been awarded or – as introduced by the Implementation Act – of the rejection of the claims, is in principle the defendant's responsibility (but the court could order the exclusive representative to do so to meet the requirement of Article 14(4) RAD). The court determines how the beneficiaries have to be informed of the judgment and how the compensation is to be collected. Known beneficiaries are in principle informed by letter. The information must also be published in a newspaper. The exclusive representative publishes the judgment on its website and in the public register for collective actions. Publication must take place as soon as possible (cf. Article 13(3) and (4) RAD).

Dutch associations or foundations that want to bring cross-border representative actions will be appointed by the Minister for Legal Protection if they comply with the RAD's criteria. According to the draft royal decree Besluit bevoegde instanties grensoverschrijdende representatieve vorderingen voor consumenten (which should have entered into force on 25 June 2023 but is not yet final), the list of qualified entities that can bring cross-border representative actions will be published on the government's website https://www.overheid.nl/.The list will include information on the name and legal form of the organization, its objects as stated in the articles of association and the date on which the organization is designated as a qualified entity to bring cross-border actions, or the last renewal date (cf. Article 14(1) RAD).

The Implementation Act does not provide for specific regulation on disclosure in representative actions. The general provisions of the DCCP apply. The parties to proceedings have a duty to inform the court fully and accurately of the facts that are relevant to the court’s decision. If they do not comply with this obligation, the court may draw adverse inferences and take appropriate action, e.g. reject the claim, shift the burden of proof or adjust the cost award (Article 21 DCCP).

However, a party is not obliged to disclose to the other party all the information and documents that could be relevant to their case. If a party needs to have certain documents in order to gather evidence for pending or future proceedings or negotiations, a court order for disclosure can be requested (Article 843a DCCP). The request must be directed to the party who has custody over the documents and can be made during proceedings on the merits or in separate preliminary relief proceedings. If the order is granted, the other party is required to provide a copy of or extract from the required documents, or to allow them to be inspected.

An order for disclosure will be granted if the claimant has a legitimate interest in the disclosure of specific documents which are in the custody of the other party, provided that these documents pertain to a legal relationship to which the claimant or the claimant’s legal predecessor is a party. The purpose of these conditions is to avoid ‘fishing expeditions’, i.e. inquiries made beyond the fair scope of the case.

The court can also order on its own initiative a party to submit certain documents. The party can refuse to comply with this order if there are compelling reasons to do so or can prevent the other party from having a copy of the documents if the court finds this to be justified (Article 22 DCCP).

For cross-border representative actions that are brought by Dutch-qualified entities in other Member States, please see "Qualified Entities", sections 2 and 4, and "Class Criteria/Certification", section 3.

For cross-border representative actions that are brought before a Dutch court by foreign-qualified entities, please see 6.2 and 6.3. The court can order the defendant to publish the judgment in a way to be determined by the court and at the expense of a party or parties to be designated by the court. The following admissibility requirements apply (Article 3:305c and 3:305a DCC as modified by the Implementation Act):

• The representative action aims to protect the similar interests of beneficiaries.
• The represented interests are covered by the organization's articles of association.
• The representative organization has sufficient funding at its disposal and sufficient control of the legal action.
• The representative organization has a publicly accessible internet page on which an overview of the status of pending proceedings and their outcome is published, as well as an explanation of the calculation of the beneficiaries' contribution if a contribution is sought.
• The representative organization has sufficient experience and expertise with regard to bringing and conducting the proceedings.
• The financier is not a competitor of, nor dependent on, the defendant.
• The representative action has a sufficiently close connection with the Dutch legal system.
• The representative organization has made sufficient efforts to negotiate with the defendant before bringing the collective action; a two-week period after the defendant has received a request for consultation will suffice.

Neither the WAMCA nor the Implementation Act provides for rules on the destination of outstanding redress funds. However, the Minister for Legal Protection has requested a study on the possibilities of a process fund for collective actions.

None at this time.