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The Netherlands

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

II. General Collective Redress Mechanisms in The Netherlands

Within Dutch law there are three different Collective Redress mechanisms to be distinguished:

A. The Collective Settlement procedure (WCAM)

B. Collective action, on the basis of articles 3:305a-305d BW (Dutch Civil Code).

C. Action on the basis of mandate and/or transfer of claims.

All three revolve around the existence of a specific legal entity, which usually takes the form of foundation (Stichting); these mechanisms may be combined.

The notion of a stichting (foundation) for collective redress needs to be elaborated first as this is relevant for all three mechanisms. It is a normal foundation, with the statutory purpose of claiming damages on behalf of certain individuals for a specific case (these are also called Claimstichting, which is not a formally recognised name). The individuals pay a relatively small amount to participate in the foundation, which may be used by the foundation to fund the procedural costs (in particular the advocate costs) of a court procedure, or to negotiate and reach a settlement (collective (WCAM) or only covering the participating individuals).

An alternative form is a legal entity (which may be a foundation, but can also be an association or other entity) that is not erected specifically for a specific case, but rather exists for promoting a general group of interests, which formally encompasses the specific case or claim. An example is the Vereniging van Effectenbezitters (Association of stock holders), which has acted for specific cases of fraud in the interests of specific stockholders. In such a case the entity usually only operates on the basis of collective action (art. 3:305a BW) and therefore cannot claim damages, or it negotiates for a collective settlement (WCAM).

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