4.7.3.2 Class actions

Documentgegevens:

Mr. W.J.L. Calkoen, datum 16-02-2012

Datum: 16-02-2012
Auteur: Mr. W.J.L. Calkoen
JCDI: JCDI:ADS599573:1
Vakgebied(en): Ondernemingsrecht (V)

Under current Dutch civil law, a foundation or association can institute an action intended to protect the collective interests of a variety of persons. This "class" or "collective" action covers both actions in which the individual interests cannot be identified (general interest actions), and actions in which individual interests can be identified (group actions). The law aims to offer efficient and effective legal protection in cases where individual interests are small, but general interests are large. However, unlike the US "class action" procedure, the object of such an action cannot be to seek specific determination of monetary compensation. A claim should be limited to a declaratory judgment, that establishes whether or not there is liability. Collective action against corporations or directors can be initiated by shareholders or third parties who have suffered damage, for example as a result of a tort committed by directors.

Legislation to have settlements of mass damages declared universally binding by the Amsterdam Court of Appeal entered into force in 2005.1 Under this legislation, a foundation or association representing the injured parties must first negotiate with the defendant in an attempt to reach a settlement. The second phase entails an order declaring the collective settlement to be binding. This procedure starts with a joint request of the foundation or association and the liable party to the Amsterdam Court of Appeal, a special section of which has exclusive jurisdiction in these procedures. The Court of Appeal must also decide upon a certain period during which an individual injured party may elect to be excluded from the collective settlement. The minimum duration of this socalled "opt-out" period is three months. Each individual injured party who has not explicitly informed the liable party within this term that he elects to be excluded is bound by the settlement.

The last phase covers the payment of compensation to the individual injured parties. Each injured party who has not exercised his right to opt out automatically becomes a party to the settlement by way of a third-party clause and loses his right to institute separate proceedings.

International shareholder class action cases have been settled against companies under Dutch law. An example is the action against Royal Dutch Shell that had started in the US.2

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Act of 2005: Collective Action (Financial Settlement) Act (Wet Collective Afwikkeling Massaschade) dealt with in the Code of Civil Procedure, articles 1013-1018, and articles 7.907-910 and 3:305a-d DCC. Together with article 2.139/150 DCC conceming misleading accounts, this creates a combination that resembles the threat posed by the US securities class actions. See also Ianika Tzankova and Daan Lunsingh Scheurleer, Annals, Aapss 1622, March 2009.

Financieele Dagblad, 3 March 2011, p. 11. The main cases are DES, Amsterdam Court of Appeal 1/7/2006, NJ 2006, 461, Dexia, Amsterdam Court of Appeal 25/1/2007, NJ 2007, 427, Vie d'Or, Amsterdam Court of Appeal 29/4/2009, NJ 2009, 440 and Skele, Amsterdam Court of Appeal 29/5/2009, NJ 2009, 506. See also Tekst en Commentaar Rechtsvordering (vierde druk), p. 1335.