The admissibility phase under the WAMCA

The Settling of Large-scale Losses or Damage (Class Actions) Act proceedings (the “WAMCA proceedings”) comprises several phases. Before the court will consider the merits of a representative organisation’s claim, it will first assess whether the representative organisation meets all statutory requirements to be allowed to bring a collective action.

This Insight focuses on the WAMCA’s admissibility phase: what happens during this phase and when is a representative organisation admissible?

What happens during the preliminary stage and how does a collective action start?

The process of bringing a collective action starts with the so‑called preliminary stage. A representative organisation that intends to commence proceedings must consult with the party against whom it plans to bring a claim. If no solution is reached jointly, the representative organisation may commence proceedings before the court.

The representative organisation will have a writ of summons served on the defendant. The writ of summons must be filed with the court registry within two days after service. By law, the writ must simultaneously be recorded in the Central Register for Collective Claims. In practice, the court will assess whether this was done within two days. The entry in the Central Register contains an excerpt of the writ of summons and is public. These steps must be completed, otherwise the representative organisation will be inadmissible.

After the writ of summons has been recorded in the register, other representative organisations may also come forward to bring similar large-scale damage actions. In principle, other representative organisations have three months to do so.

How does the admissibility phase proceed after the preliminary stage?

After completion of the preliminary stage, the first question in the proceedings is whether the representative organisation is admissible in its claim. In this admissibility phase, the defendant only needs to raise defences concerning admissibility. A defence on the merits is not yet required at this stage.

Admissibility requirements

The representative organisation must meet a number of statutory requirements to be admissible in its claim. A distinction can be made between formal and substantive admissibility requirements.

Formal admissibility requirements

The formal requirements concern the formalities that must be included in the representative organisation’s writ of summons. These requirements are laid down in Article 1018c(1) and (2) of the Dutch Code of Civil Procedure (“DCCP”). In addition to the obligation to file the writ of summons with the court registry within two days of service, with the simultaneous entry of the writ in the Central Register for Collective Claims, the writ of summons must include the following:

1. description of the event or events to which the collective action relates;
2. description of the persons whose interests the collective action seeks to protect;
3. description of the extent to which the factual and legal questions to be answered are common;
4. description of how the admissibility requirements of Article 3:305a(1)–(3) of the Dutch Civil Code (“DCC”) have been met, or the grounds on which paragraph 6 of that Article applies;
5. the information enabling the court to appoint an exclusive representative for this collective action, in the event that other collective actions for the same event are instituted pursuant to Article 1018d DCCP; and
6. the claimant’s obligation to make an entry of the case in the register referred to in Article 3:305a(2), and to state the consequences of that entry pursuant to this Article.

Substantive admissibility requirements

The substantive requirements are content‑related requirements that the representative organisation must meet. The substantive admissibility requirements are listed in Article 1018c(5) DCCP and Article 3:305a DCC. Pursuant to Article 1018c(5) DCCP, the court will consider the collective claim on its merits only when:

1. the representative organisation meets the admissibility requirements as set out in Article 3:305a(1)–(3) DCC;
2. the representative organisation has sufficiently demonstrated to the court that bringing the collective claim is more efficient and effective than individual claims by those whose interests are represented; and
3. there are no clear indications at the outset that the collective claim is prima facie unfounded.

Representative organisations must therefore meet the requirements laid down in Article 3:305a(1), (2) and (3) DCC. These requirements are further explained below.

Similarity requirement

The claim must seek to protect common interests. The interests protected through a collective action must be capable of being bundled. This means the claims must be capable of being adjudicated without the need to consider the particular circumstances of individual interested parties. The court must be able to assess the claim in the abstract, but this does not require the positions of those involved to be identical or the same.

In its judgment of 7 October 2025, the Court of Appeal of Amsterdam held, inter alia, that the claims could be bundled because they arose from a breach of the same legal norm and therefore met the similarity requirement. The fact that the amounts of the individual interested parties’ claims for damages differ does not preclude joint adjudication. The WAMCA allows the use of different categories, which can, for example, take into account the amount of the loss.[1]

Articles of association requirement

The interests advanced by the collective action must fall within the representative organisation’s stated objects in its articles of association. A bare objects clause is generally not enough; the organisation must demonstrate activity in the relevant area and identify its constituency, which must correspond to its objects stated in the articles of association.

Guarantee requirement

The interests of those represented by the representative organisation must be adequately safeguarded. The guarantee requirement is met if the representative organisation is sufficiently representative and the additional requirements listed below, relating to internal oversight within the organisation and participation in or representation in decision-making, are also satisfied. The requirements are as follows:

• there must be a supervisory body;
• there must be appropriate and effective means for the persons whose interests are protected to participate in, or be represented in, the representative organisation's decision‑making;
• there must be sufficient resources to bear the costs of litigation, with the representative organisation itself retaining sufficient control over the litigation (rather than the funder). The court has the power to inspect a funding agreement with a third‑party funder;
• there must be a publicly accessible website containing the following information: (i) the representative organisation’s articles of association, (ii) its governance structure, (iii) the supervisory body’s annual accountability report, (iv) the most recently adopted management report (which, like the annual accounts, must be prepared annually in accordance with the law), (v) the remuneration of directors and members of the supervisory body, (vi) the representative organisation’s objectives and methods of working, (vii) an overview of the status of pending proceedings and outcomes, (viii) an overview of any contribution payable if the representative organisation charges a contribution to the persons whose interests are protected, and (ix) an overview explaining how persons can join and how they can terminate their participation;
• the representative organisation must have sufficient experience and expertise to bring the collective claim; and
• for collective claims brought by consumer organisations on behalf of consumers for breaches of EU consumer law, the representative organisation may not be funded by a competitor of the defendant or a party dependent on the defendant.

Representativeness requirement

The similarity requirement, the articles of association requirement and the guarantee requirement together are referred to as the representativeness requirement. The representativeness requirement prevents a representative organisation from bringing a claim without the required support. It must be clear that the representative organisation acts on behalf of a sufficiently large proportion of those affected.

What constitutes a sufficiently large proportion of those affected varies from case to case. This can be assessed, for example, by listing how many members have joined an association, or by listing how many affected persons have actively signed up to the claim. In a judgment of the Court of Appeal of Amsterdam, the representative organisation was found to be representative, partly due to endorsements by social organisations and partly on the basis of the number of ‘likes’ registered via the like button on its website. These likes can also provide insight into how many natural persons support the collective action, provided the website makes clear against whom the action is directed and what the subject is.[2]

The representativeness requirement also applies where a representative organisation brings a public‑interest action. For associations and foundations, it is then more difficult to describe and individualise the people they represent. The Amsterdam District Court held that the requirement of representativeness is satisfied when the representative organisation demonstrates that it is an adequate voice for the group on whose behalf it acts.[3]

Other statutory requirements

Article 3:305a(3) DCC contains additional admissibility requirements:

• directors of the representative organisation may not have a direct or indirect profit motive;
• the claim must be sufficiently connected to the Dutch legal order; and
• the representative organisation must have made sufficient efforts to achieve the objective of the claim by consulting with the counterparty to avoid litigation, for which a minimum period of two weeks applies.

A representative organisation must therefore meet the above admissibility requirements of Article 3:305a(1)–(3) DCC, unless the “light admissibility regime” applies to the representative organisation. The legislator has provided that for certain claims – given their ideological aim and limited financial interest, the nature of the claim or the constituency – the stricter admissibility requirements do not always have to apply. In that case, the claim may not seek monetary damages. Certain requirements, for example those relating to internal supervision, participation in or representation in decision‑making on the claim, and financial capacity to bear the costs of the proceedings, do not apply. The purpose of the light admissibility regime is to keep the threshold for bringing ideological actions low. Whether an exemption is granted under this regime lies with the court’s discretion. For collective claims brought by representative organisations on behalf of consumers for breaches of EU consumer law, a somewhat less light regime applies.[4]

Prima facie unfounded

As stated above, the representative organisation will be inadmissible in its claim if it appears upfront that the claim is, as provided by law, “prima facie unfounded.” The legislator has not provided a specific definition of a “prima facie unfounded" claim.

By assessing upfront whether the collective claim is prima facie unfounded, the court can, in exceptional cases, avoid proceedings on the merits where it is already clear that the claim does not hold water. Whether a claim is unfounded is assessed summarily. This means that there is no extensive assessment on the merits, but rather a limited assessment. A collective claim will not quickly be ruled to be unfounded. A claim may be prima facie unfounded, for example, where the claim is poorly substantiated or there is no interest in the claim. For example, the District Court of The Hague held that a claim was prima facie unfounded in a collective action against the obligation to wear a face mask. Because the obligation had already been abolished, the District Court of The Hague held that the representative organisations had insufficient interest in their claims. This also immediately demonstrated the prima facie unfoundedness of the claims.[5]

Admissibility judgment

After the statement of defence on admissibility has been submitted by the defendant, the court will schedule an oral hearing if the court does not yet have sufficient information to be able to decide on the representative organisation’s admissibility. In addition, the court may give the parties another opportunity to submit written arguments on the admissibility requirements.

After the written round(s) and a possible hearing on the representative organisation’s admissibility, the court will decide on admissibility. Considerable time may elapse between the service of the writ of summons and the moment the court renders its decision on admissibility. When the judgment is delivered, the court must assess whether the admissibility requirements are met at that time. This means that the court may hold that the representative organisation is now admissible, even if the representative organisation did not meet the admissibility requirements at the time of service of the writ of summons.

If the court has declared a representative organisation inadmissible, it may – if the defect is remediable – still be declared admissible on appeal if the Court of Appeal holds that, at the time the hearing in appeal was closed, the admissibility requirements were met.[6]

Exclusive representative in the event of multiple representative organisations

As explained above, it is possible for other representative organisations to come forward after the first representative organisation served the writ of summons. In the admissibility judgment, the court appoints an exclusive representative, who will represent all interests during the proceedings on the merits. The collective actions are joined and, as a rule, a single representative organisation acts as the exclusive representative. The other representative organisations remain parties to the proceedings. It is also possible, in a joined collective action, for two exclusive representatives to be appointed. For example in the collective action against TikTok et al., two representative organisations were appointed exclusive representatives: one represents the interests of minors and the other those of adults.[7]

The first opportunity to settle

After the court has appointed an exclusive representative in the admissibility judgment, the proceedings on the merits do not start immediately. The admissibility judgment must set a period within which the parties will explore whether a settlement can be reached.

Conclusion

Once the court has ruled on the representative organisation’s admissibility and the parties have not reached a settlement, the proceedings on the merits will start.

In the next Insight, Osborne Clarke’s experts will further discuss the exclusive representative.