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The Netherlands

Author: Ianika Tzankova/ Eric Tjong Tjin Tai - with support from Karlijn van Doorn

V. Case law

A. Table

Year

Court

Subject

Keywords

2013

Rechtbank 's-Gravenhage 30 January 2013, ECLI:NL:RBDHA:2013:BY9850 (Shell)

Environmental law

Collective action

2012

HR 12 October 2012, LJN BW9243, Nederlandse Jurisprudentie 2012/686

General

WCAM, opt-out, representation

2011

Hoge Raad 28 January 2011, LJN BO5822, Nederlandse Jurisprudentie 2011/59

General

WCAM

2010

Hoge Raad 9 April 2010, LJN BK4549 (SGP case)

Equality

Collective action

2010

HR 26 februari 2010, LJN BK5756, NJ 2011/473 (Stichting Baas in Eigen Huis/Plazacasa BV)

General

Collective action

2010

Hof Amsterdam 12 november 2010, NJ 2010/683, LJN: BO3908 (Converium)

Financial law

WCAM, private international law, jurisdiction

2009

HR 27 november 2009, LJN BH2162 (VEB/World Online)

Financial law

Collective action, mandate/ transfer

2009

HR 5 June 2009, LJN BH2815, BH2811, BH2822, Nederlandse Jurisprudentie 2012/182, 183 en 184 (Effectenlease)

Financial law

WCAM, collective action, mandate/ transfer

2009

Hof Amsterdam 29 april 2009, NJ 2009/448, ECLI:NL:GHAMS:2009:BI2717 (Vie d'Or)

Financial law

WCAM, binding settlement

2007

Hof Amsterdam 25 januari 2007, NJ 2007/427, ECLI:NL:GHAMS:2007:AZ7033 (Dexia)

Financial law

WCAM, binding settlement

2006

HR 13 October 2006, LJN AW2080, Nederlandse Jurisprudentie 2008/528 (Vie d'Or)

Financial law

Collective action

2006

Hof Amsterdam 1 juni 2006, NJ 2006/461, ECLI:NL:GHAMS:2006:AX6440 (DES)

Product liability

WCAM, binding settlement

2005

HR 23 December 2005, LJN AU3713, Nederlandse Jurisprudentie 2006/289 (Safe Heaven)

Financial law

Representative action, mandate/ transfer

B. Summaries

1. HR 23 December 2005, LJN AU3713, Nederlandse Jurisprudentie 2006/289 (Safe Heaven)

Keywords: art. 3:305a, representative action

A representative foundation can request a declaratory judgment of unlawful behavour by a bank to a group of specific consumers by not taking care that a fraudulent investment fund operated with the support of the bank. This applies even though the foundation cannot obtain damages if it does not represent the claimants.

2. HR 13 October 2006, LJN AW2080, Nederlandse Jurisprudentie 2008/528 (Vie d'Or)

Keywords: collective action, remedies

The case concerned a collective action for individuals who were harmed by the bankruptcy of an insurance company. The court decided that the request for a declaratory judgement that the defendants were jointly and severally liable for, amounted to a remedy of damages, which is not allowed in a collective action; furthermore the interests involved in the specific individual damage claims cannot be combined as being insufficiently similar. Finally, the organisation could only act for the claims which were part of its statutory description, not for related claims (par. 9.1.1-9.2.4).

3. HR 5 June 2009, LJN BH2815, BH2811, BH2822, Nederlandse Jurisprudentie 2012/182, 183 en 184 (Effectenlease)

Keywords: WCAM, collective action

The case regards 'effectenlease' (an investment agreement combined with a loan through which the investment is financed), for which a collective settlement was made binding on the basis of WCAM. In these cases, individual claimants had opted-out of the settlement and requested damages on the facts of their individual case. The Hoge Raad declared that the courts had to judge the cases on the facts and thereby were not bound by the rules regarding the collective settlement, even though the settlement was reviewed by the court.

4. HR 27 november 2009, LJN BH2162 (VEB/World Online)

Keywords: collective action, proof of mandate/transfer

The case involves an organisation claiming to represent claimants. As no proof was provided of sufficient mandate or transfer of claims, the organisation lacked standing. For the collective action, the second party (an association of equity holders) did have standing.

5. HR 26 februari 2010, LJN BK5756, NJ 2011/473 (Stichting Baas in Eigen Huis/Plazacasa BV)

Keywords: collective action, representativeness, opt-out

Organisation represented the interests of house brokers for copyright infringement by website aggregating house advertisements. A significant number of brokers did not agree with this action. Representativeness was not required for an organisation, it suffices that the interests which are to be protected are suitable for bundling in order to promote efficient and effective legal protection. The fact that a large group of the persons concerned do not agree is no barrier. These persons may choose to opt-out (art. 3:305a(5) BW).

6. Hoge Raad 9 April 2010, LJN BK4549 (SGP case)

Keywords: equality law, representative action

The State provides subsidies for parties having parliamentary seats. The Clara Wichmann foundation for promoting equality of men and women sued the State for providing this subsidy to a christian party (SGP) that excludes women from standing in an election, as thereby supporting unequal treatment. The foundation was admissible as it did promote the interests concerned, and the interests were similar as collective action did lead to efficient and effective legal protection. The counter-argument that the group of women who might stand for the SGP would not wish this action, did not lead to a different outcome.

7. Hoge Raad 28 January 2011, LJN BO5822, Nederlandse Jurisprudentie 2011/59

Keywords: WCAM

Agreement was not effectively annulled, hence the relationship between parties did fall under the WCAM-settlement.

8. HR 12 October 2012, LJN BW9243, Nederlandse Jurisprudentie 2012/686

Keywords: WCAM, opt-out, representation

Case turned on whether a Claimstichting had proper mandate for an opt-out declaration on behalf of its client. In this case there was sufficient mandate.

9. Hof Amsterdam 1 juni 2006, NJ 2006/461, ECLI:NL:GHAMS:2006:AX6440 (DES).

Keywords: WCAM

Collective Settlement in the DES-case (see earlier HR 9 oktober 1992, NJ 1994/ 535, described in III.4.b above) has been declared binding on the basis of WCAM.

10. Hof Amsterdam 25 januari 2007, NJ 2007/427, ECLI:NL:GHAMS:2007:AZ7033 (Dexia)

Keywords: WCAM

Collective settlement in 'Effectenlease' case. By mediation through the former president of the Dutch Central Bank, Duisenberg, a settlement was reached (called: Duisenberg-regeling). This settlement is declared binding on the basis of WCAM. Note: in HR 5 June 2009, LJN BH2815, BH2811, BH2822, Nederlandse Jurisprudentie 2012/182, 183 en 184 (Effectenlease) it turned out that in case of opt-out, the settlement has no indicative or binding value on the court that judges on the opt-out cases.

11. Hof Amsterdam 29 april 2009, NJ 2009/448, ECLI:NL:GHAMS:2009:BI2717 (Vie d'Or)

Keywords: WCAM

Collective settlement in the case of Vie d'Or (see earlier HR 13 October 2006, LJN AW2080, Nederlandse Jurisprudentie 2008/528 (Vie d'Or)).

12. Hof Amsterdam 12 november 2010, NJ 2010/683, LJN: BO3908 (Converium)

Keywords: WCAM, private international law

Case regarding investors claim against a Swiss company. In earlier U.S. proceedings it was declared that the U.S. court was not competent to adjudicate regarding claims of non-American investors, while for American investors a settlement was reached (United States District Court for the Southern District of New York 12 December 2008). Converium and a group of non-American investors reached a settlement and applied to the Dutch court to declare the settlement binding on the basis of WCAM. The Court declared that the settlement will - if declared binding - also bind non-Dutch investors, but that non-Dutch investors had to be notified of the pending procedure. The case is pending to allow due notification.

13. Rechtbank 's-Gravenhage 30 January 2013, ECLI:NL:RBDHA:2013:BY9850 (Shell)

Keywords: Collective action 3:305a BW

Case involving liability of Shell for oil spills in Nigeria. The Court declares the Dutch foundation Milieudefensie admissible regarding declaratory judgment regarding interests of individual Nigerian claimants. Hence Dutch interest organisations can in fact represent foreign individuals.

References are to the leading case law publication Nederlandse Jurisprudentie, as well as to the official publication on rechtspraak.nl. The latter reference uses ECLI as well as its Dutch predecessor, LJN

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