10.1 Introduction

In the collective action proceedings provided for under Dutch, English and German law, the courts in their rulings establish the common elements of liability and/or provide answers formulated to the common legal questions. Subsequently, in individual court proceedings, the damage claims for the individual claimants' losses is ruled upon.1 The German model case and the English test claim procedures provide for a mechanism to concentrate the collective procedure before a single court. The aforementioned collective action proceedings are all based on the opt-in model. Under the Dutch Collective Settlement of Mass Damage Act (WCAM), however, the Amsterdam Court of Appeal declares, upon petition by the contracting parties, the settlement concluded between a representative foundation/association and an alleged tortfeasor binding on all interested parties, unless they opt out. With respect to European cross-border litigation, there is much uncertainty on the status of the WCAM and the applicable rules of private international law. Indeed, the current European rules on private international law are regarded not fitted at all for mass claim litigation.2

One of the important preliminary questions is whether the court has jurisdiction to tule upon the claims or petitions in these various collective action or settlement proceedings. Jurisdiction in regard to persons, legal persons included, domiciled in the European Union are determined by the Brussels I regulation. Currently, the Brussels I regulation does not provide any special jurisdiction tule in regard to collective action or collective settlement proceedings.

At the European level, various institutions have been addressing this issue. In its resolution of 2 February 2012,3 the European Parliament requested the Commission to contemplate special jurisdiction rules for collective actions in its forthcoming work on collective redress. The European Commission has already raised the issue of jurisdiction in collective actions in its Green Paper on the Review of the Brussels I regulation. It considered to what extent it may be appropriate to permit, with respect to related actions, a grouping of actions by and/ or against multiple parties on the basis of uniform rules.4 In the first working analysis of the impact of policy options designed in the light of the responses to the Green Paper on Consumer Collective Redress, the staff of the European Commission already addressed the problems of jurisdiction and binding effect.5 The fifth option proposed by the Commission describes an EU-wide judicial collective redress mechanism. This mechanism is based on the model that the court in the Member State where the defendant is domiciled or the court of the Member State where the market is most affected by the illegal practice has jurisdiction to try the test case initiated by a consumer or a consumer organisation on behalf of a number of harmed consumers. This court's decision whether or not the defendant committed an illegal practice has binding effect on the entire class of harmed consumers irrespective of the fact that they identify themselves only after this judgment. The issue of (cross-border) binding effect will be discussed in chapter 11. As a second step, the courts in the Member States where the consumer is domiciled rule, in the individual subsequent proceedings, upon the issues of causation and the calculation of the compensation.6 In the 2011 public consultation "Towards a Coherent European Approach to Collective Redress" issued by the Commission,7 the question was raised whether to adopt a special rule on jurisdiction with regard to collective redress to ensure effective enforcement of EU law across the EU was raised again.8 Concluding, a proper analysis of the jurisdiction issue in collective proceedings is necessary.

Section 10.1 analyses the application of the Brussels I jurisdiction rules to opt-in collective action proceedings. Issues in regard to jurisdiction, particularly, arise in court proceedings where members of the group that was affected by the alleged tortfeasor, are not party to the collective proceedings (opt-out collective action models).9 Therefore, in section 10.2, special attention is given to the question of competence of the Amsterdam Court of Appeal in WCAM proceedings. Section 10.3 deals with a special jurisdiction rule regarding collective action and collective settlement proceedings. I will argue for a special rule on jurisdiction regarding collective action and collective settlement proceedings to be introduced in the Brussels I regulation by amendment of the current Commission proposal to reform the Brussels I regulation ("Proposal Reform Brussels I regulation").10 This proposal for a jurisdiction rule in regard to collective proceedings is restricted to non-contractual claims arising in corporate misinformation cases for the same reasons as mentioned in chapter 8 in regard to my proposal for a conflict of laws rule.