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The Netherlands

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

III. Sectoral Collective Redress Mechanisms

A. Consumer law

1. General description

The general mechanisms for collective redress apply also for consumer collective redress. However, there are a few specific rules for parts of consumer law.

2. Scope

The general mechanisms apply to the whole of consumer case law. For specific interests there are specific material provisions. Furthermore, there are specific rules for specific parts of consumer law (see the descriptions in the following text).

3. Procedure

a. Standing

The general rules apply. Art. 6:240 BW specifies (inter alia) that a representative organisation for consumers can start a procedure against unfair general conditions.

b. Opt-in; opt- out procedure

The general rules apply.

c. Competent court

The general rules apply. For a procedure against unfair general conditions on the basis of art. 6:240 BW, the Court of Appeal at 's Gravenhage (The Hague) has sole competence (art. 6:241(1) BW).

d. Participation of foreign plaintiffs

Art. 6:240(6) BW allows foreign representative consumer organisations or consumer authorities to start proceedings against unfair general conditions. Furthermore, art. 3:305c BW (see above) allows foreign organisations on the list of the European Commission to instigate a collective action, see above.

e. Certification criteria

No particular rules apply.

f. Main procedural rules

In cases regarding unfair contract terms, there are specific rules regarding the court summons for an association representing companies using certain general contract terms (art. 1003-1007 BRv), see further art. 6:240-243 BW.

The proceedings regarding unfair general conditions are not admissible if the representative consumer organisation did not, prior to the proceedings, give the user of the general conditions the opportunity to change the conditions (art. 6:240(4) BW).

g. Evidence/ discovery

No particular rules available.

h. Multi-stage process

No particular rules available.

4. Available remedies

No particular rules on remedies. See general part

5. Costs & funding

No particular rules on costs. However, for consumers with little income/capital state-funded financial aid is available.

6. Number of claims

The Consumentenbond (Dutch association of consumers) is fairly active, with around 10-20 court procedures each year, which mostly involve general consumer protection on the basis of art. 3:305a BW. Furthermore there are the specific Claimstichtingen (see general part) that instigate proceedings.

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

See above for foreign plaintiffs, and see the general rules

B. Competition law

1. General description

No specific collective redress mechanism exists in this area.

C. Financial market law

1. General description

No specific collective redress mechanism exists in this area.

2. Case Law

The general mechanisms have been used frequently for redress regarding financial market claims. See for example:

  • HR 23 December 2005, LJN AU3713, Nederlandse Jurisprudentie 2006/289 (Safe Heaven)
  • HR 13 October 2006, LJN AW2080, Nederlandse Jurisprudentie 2008/528 (Vie d'Or)
  • HR 5 June 2009, LJN BH2815, BH2811, BH2822, Nederlandse Jurisprudentie 2012/182, 183 en 184 (Effectenlease)
  • HR 27 november 2009, LJN BH2162 (VEB/World Online)
  • Hof Amsterdam 25 januari 2007, NJ 2007, 427 (Dexia)
  • Hof Amsterdam 29 april 2009, LJN: BI2717 (Vie d'Or)
  • Hof Amsterdam 15 juli 2009, LJN: BJ2691 (Vedior)
  • Hof Amsterdam 29 mei 2009, LJN: BI5744 (Shell)
  • Hof Amsterdam 12 november 2010, LJN:BO3908 (Converium)
  • HR 7 November 1997, NJ 1998/268 (Philips/VEB): union of stockholders (VEB)
  • HR 2 December 1994, NJ 1996/249 (Coopag/ABN AMRO)

D. Product liability law

1. General description

No specific collective redress mechanism in this area exists.

2. Case Law

See in particular the DES-case (HR 9 October 1992, Nederlandse Jurisprudentie 1994/535). In that case, producers of a medicine that was used by pregnant women, and lead to medical problems with the daughters of those women, were found to be joint and severally liable The claims have finally been settled under the WCAM (see above). The procedure formally only concerned 5 individual claims, however it was intended and viewed as a general example for all other claims regarding DES.

Also HR 30 June 1989, Nederlandse Jurisprudentie 1990/652 and HR 20 September 1996, Nederlandse Jurisprudentie 1997/328 regarding Halcion in which 41 individual claims were involved.

Cf. also HR 29 November 2002, Nederlandse Jurisprudentie 2003/549 (Legionella) which was not about product liability in the strict sense, but about a hot tub on a trade fair that spread legionella disease to fair visitors.

E. Other areas

No specific collective redress mechanisms exist in other areas. There are however examples in case law of the application of general mechanisms to specific sectors. These are listed below. The material legislation for these sectors is described here and below.

1. Equality Law

An example is the collective action regarding the exclusion of eligibility of women by a christian political party (HR 9 April 2010, LJN BK4549), which was based in particular on art. 1 Grondwet (constitution) as well as art. 25 and art. 26 International Covenant on Civil and Political Rights (ICCPR), while the procedure was a collective action based on art. 3:305a BW.

2. Environmental Law

In environmental law, the collective action of art. 3:305a BW is regularly used by environmental protection organisations. There is extensive case law. See for example:

HR 27 June 1986, NJ 1987/743 (Nieuwe Meer), where a right for collective action was accepted before art. 3:305a BW was adopted and in force.

HR 18 December 1992, NJ 1994/139 (Kuunders) regarding possible pollution in a natural conservation area,

Rechtbank 's-Gravenhage 14 september 2011, LJN BU3538 and Rechtbank 's-Gravenhage 30 January 2013, ECLI:NL:RBDHA:2013:BY9850 regarding liability of Shell for an oil spill in Nigeria. This case is partly a collective action on the basis of art. 3:305a BW by Milieudefensie.

The action of art. 3:305a BW does not lead to damages (except procedural costs of the organisation itself); it aims mainly at obtaining an injunction or declaratory judgment.

See further E. Bauw, E.H.P. Brans, Milieuprivaatrecht, Deventer: Kluwer 2003, par. 7.4.2, p. 316-322. Regarding cross-border cases see p. 383-393.

3. Labour Law

Art. 15 Wet op de collectieve arbeidsovereenkomst (Law on collective labour agreements, http://wetten.overheid.nl/BWBR0001937) stipulates that an organisation that has entered into a collective labour agreement can, in case of another party or its members acts in violation of obligations from that agreement, claim damages for the organisation as well as damages for its members. Art. 16 adds that immaterial damages can also be recovered, albeit at an amount to determine ex aequo (naar billijkheid).

In overview, art. 15 Wet CAO did not receive much use (Losbladige Arbeidsovereenkomst, Wet CAO, art. 15, aant. 3 (Olbers), refering to M.M. Olbers, SMA 1988, p. 214-215), although in recent years this seems to have changed somewhat, looking at published case law. There are regular cases in which damages are claimed and sometimes awarded by representative organisations, in the order of 1-10 per year are published.

There is Hoge Raad case law on details of these rules:

HR 2 november 1979, NJ 1980/227

HR 18 september 1992, NJ 1993/49

HR 11 April 2003, LJN AF3425

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