Skip navigation

The Netherlands

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

B. Collective action

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).

2. Scope

The aforementioned provisions apply to all kinds of cases.

3. Procedure

a. Standing

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. Representativeness is not required (Plazacase 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, to wit 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 tried to reach its goal by discussion out of court (art. 3:305a(2) BW).

g. Res judicata effect

The judgement has res judicata only between the parties in the procedure (and/or the claims adjudicated therein). Furthermore the Hoge Raad has judged 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 is used in roughly 20-40 court procedures yearly, according to the published case law at rechtspraak.nl.

7. Particularities/ Problems if mechanism is used in cross- border cases

None.

8. Critiques

There is criticism that no requirement of representativeness exists.

Future event

%BriefTitle%

%BriefDescriptionLIMIT%

How to donate

Find out how you can help us address some of the most pressing global challenges.