The collective group action (article 3:305a Dutch Civil Code). Article 3:305a paragraph 1: “A foundation or association with full legal capacity that, according to its articles of association, has the objection to protect specific interests, may bring to court a legal claim that intents to protect similar interests of other persons”.
The collective group action A representative foundation or organization; Interested individuals must join the organization; Interests of the individuals: - the interests of the group must be covered by the statutes of the organization; - the organization must carry out activities in that field.
The collective group action No financial compensation. Article 3:305a paragraph 3: “A legal claim as meant in paragraph 1 may be brought to court in order to force the defendant to disclose the judicial decision to the public, in a way as set by court and at the costs of the persons as pointed out by the court. It cannot be filed in order to obtain compensatory damages”.
The Dutch Act on Collective Settlement Mass Damages The parties has to negotiate together for a settlement agreement; The parties can jointly request the court to declare the settlement agreement binding for all interested individuals; Most important benefits: - financial compensation; - declaration is binding for all interested individuals.
The Dutch Act on Collective Settlement Mass Damages The range of the agreement. Settlement agreement between one or more potentially liable parties and one or more foundations or associations which are representing one or more groups of persons; The settlement agreement must contain categories of loss; No full compensation.
The Dutch Act on Collective Settlement Mass Damages The entire group of victims is bound by the settlement agreement. Article 7:907 paragraph 1: “An agreement for the purpose of compensating damage caused by an event or by similar events, concluded between one or more foundations or associations with full legal capacity and one or more other parties, who have engaged themselves under this agreement to pay compensation for that damage may, upon the joint request of these foundations, associations and the other parties, be declared binding by the court for (other) persons to whom the damage was caused, provided that the foundations or associations represent the interests of those persons pursuant to its articles of association”.
The Dutch Act on Collective Settlement Mass Damages Opt-out possibility. Article 7:908 paragraph 2: “The declaration that the agreement is binding shall have no consequences for a person entitled to compensation who has notified the person referred to in Article 7:907, paragraph 2, under point (f), in writing, within a period to be determined by the court of at least three months following the announcement of the decision referred to in Article 1017 paragraph 3 of the Code of Civil Procedure, that he does not wish to be bound by the agreement. The court may allow the parties who have concluded the agreement, to ask the persons entitled to a compensation to provide further information together with the notification meant in the first sentence. If the information meant in the second sentence is not provided, or if it is incorrect or incomplete, this shall not affect the validity of the notification meant in the first sentence”.
The Dutch Act on Collective Settlement Mass Damages The notification of the settlement agreement. Direct notification of the known interested persons; Public notification; Inspection at the court in Amsterdam.
The Dutch Act on Collective Settlement Mass Damages The content of the agreement. Article 7:907 paragraph 2: The agreement must in any case include: a. a description of the group or groups of persons on whose behalf the agreement was concluded, according to the nature and the seriousness of their loss; b. the most accurate indication possible of the number of persons belonging to the group or groups; c. the compensation that will be awarded to these persons; d. the conditions which these persons must meet to qualify for the compensation; e. the procedure by which the compensation will be established and can be obtained; f. the name and domicile of the person to whom the written notification referred to in Article 7:908, paragraph 2 and 3, can be sent.
The Dutch Act on Collective Settlement Mass Damages The rejection of the agreement. Article 7:907 paragraph 3: The court shall reject the request if: a. the agreement does not comply with the provisions of paragraph 2; b. the amount of the compensation awarded is not reasonable having regard, inter alia, to the extent of the damage, the ease and speed with which the compensation can be obtained and the possible causes of the damage; c. it is insufficiently certain that the rights resulting from the agreement for persons on whose behalf the agreement has been concluded, can be followed up; d. the agreement does not provide in a possibility of an impartial settlement of disputes which may arise from the agreement by another than the judge or court that would have jurisdiction according to law; e. the interests of the persons on whose behalf the agreement was concluded are otherwise not adequately safeguarded; f. the foundations or associations referred to in paragraph 1 are not sufficiently representative with regard to the interests of persons on whose behalf the agreement has been concluded; g. the group of persons on whose behalf the agreement was concluded is not large enough to justify a declaration by the court that the agreement is binding; h. there is a legal person who will provide the compensation pursuant to the agreement which is not a party to the agreement.
Jurisprudence The DES-case Agreement was declared binding on 1 June 2006; Content: payment of € 38.000,000.
Jurisprudence The Dexia-case Agreement was declared binding on 25 January 2007; Content: debt of about 200.000 investors will be largely remitted. The Shell-case Agreement was declared binding on 29 May 2009; Content: payment of $ 350.000,000 to more than 500.000 persons + legal costs. The Vedior-case Agreement was declared binding on 15 July 2009; Content: payment of € 4.000,000 to 2000 persons.
Class action in The Netherlands Are The Netherlands becoming more popular for class actions? - Ruling from the Amsterdam court of 17 January 2012; - From now on: class action cases in two phases?