The exclusive representative under the WAMCA

The proceedings under the Settling of Large-scale Losses or Damage (Class Actions) Act (the “WAMCA proceedings”) comprise several phases. During the admissibility phase, the court appoints, in principle, one exclusive representative. Our experts explain the admissibility phase in the Insight “The admissibility phase under the WAMCA”.

What is an exclusive representative?

After a representative organisation has had a writ of summons served, other (competing) representative organisations may also institute a similar collective action. Other representative organisations will be aware because an excerpt of the writ must, by law, be recorded simultaneously in the public Central Register for Collective Claims.

From the moment of registration, a period of three months commences. Within this period, other representative organisations may institute a collective action for the same event or events. This period may be extended by a maximum of three months. To obtain an extension, a competing representative organisation must, within one month of the first registration, register at the court registry that it intends to bring a collective action for the same event or events and explain that three months is insufficient.

Where different representative organisations have instituted an action and have been declared admissible, the court will (in principle) appoint one exclusive representative. The appointment facilitates a smooth and efficient proceedings and prevents duplicate representation.^[1] In addition to appointing the exclusive representative, the court will determine what the collective action precisely covers and for which narrowly defined group of persons the exclusive representative acts.^[2]

What is the role of the exclusive representative?

The exclusive representative represents the interests of the entire group of persons on whose behalf the collective action has been initiated by the various representative organisations. The exclusive representative can be regarded as the “lead claimant” and is the primary point of contact for the defendant.^[3]

The exclusive representative performs the procedural acts. This makes clear to all involved (the court, the injured parties and the defendant) who is in charge on the claimants’ side.^[4] The exclusive representative must also consider whether an amicable solution can be reached. The exclusive representative is also the party that records the admissibility judgment in the Central Register for Collective Claims (in practice, the court registry often arranges this).

Who is appointed as exclusive representative?

Who does the court choose?

The court determines which of the admissible representative organisations is appointed as exclusive representative. To this end, the court must have sufficient information. Pursuant to Article 1018c(1) of the Dutch Code of Civil Procedure (“DCCP”), the writ of summons must include information enabling the court to appoint an exclusive representative. In making its choice, the court will consider the aspects listed in Article 1018e DCCP, including:

The size of the group of persons for whom the representative organisation acts;

1. the magnitude of the financial interest represented by this group;
2. other activities the representative organisation performs for the persons for whom it acts, in or out of court; and
3. previous activities performed or collective actions instituted by the representative organisation.

It is for the court to assess the weight to be attached to these aspects in a particular case. In practice, the court may also consider other aspects. ^[5] For example, the Amsterdam District Court has ordered representative organisations to submit their funding agreement with the litigation funder in order to (amongst others) appoint an exclusive representative.^[6] By reviewing the agreement, the court can assess how the funder’s influence on the proceedings is regulated and whether that regulation allows careful representation of the injured parties’ interests.^[7] The court considered this relevant to the appointment of the exclusive representative.

In principle, the court appoints one representative organisation and must state reasons for its choice. In practice, deviations occur, including the following situations:

• If no competing actions are instituted, the court sometimes appoints a representative organisation as exclusive representative without or with limited reasoning.^[8]
• If no competing actions are instituted, the court may decide not to appoint an exclusive representative.^[9] In a judgment in a collective action instituted by Greenpeace, the court expressly stated that Greenpeace would not be appointed as exclusive representative and that the court would ensure registration of the judgment in the Central Register.^[10]
• In various judgments, the court has appointed more than one exclusive representative.^[11]

Representative organisations must include in the writ of summons the grounds on which they should be appointed as exclusive representative. A competing representative organisation that drafts its writ of summons later may therefore position itself more specifically against the first representative organisation.^[12] In practice, courts may give competing representative organisations the opportunity, during the admissibility phase, to give their view on the appointment.^[13]

Not possible to challenge the court’s decision

Once the court has appointed the exclusive representative, this decision cannot be challenged. This prevents unnecessary delay.

Can more than one representative organisation be appointed as exclusive representative?

If the circumstances – such as the nature of the collective action, the profile of the representative organisations, or the interests of those represented – so warrant, the court may appoint more than one exclusive representative.

Relevant circumstances may include that those represented do not have divergent interests and that neither organisation appears more suitable than the other.^[14] It may also be relevant that the representative organisations are assisted by the same lawyer.^[15] Representative organisations themselves may also request the appointment of multiple exclusive representatives.^[16]

As mentioned earlier, the court may also appoint multiple representative organisations to act jointly as exclusive representatives, in light of the action’s nature, for example the ideological nature.^[17] For example, the trade unions FNV and CNV were appointed to act jointly as exclusive representatives of the ideological interest of a fair labour market in a collective action against Temper.^[18] FNV and CNV also acted jointly against transport company XPO Supply Chain Netherlands III B.V. regarding continued participation in the pension fund following a transfer of undertaking.^[19]

A court may also appoint multiple exclusive representatives where each acts for a specific segment of the group. In the collective action against TikTok et al., two representative organisations were appointed: one represents the interests of minors and the other represents the interests of adults.^[20]

When is the exclusive representative appointed?

The exclusive representative is generally appointed when a decision is made on admissibility

Only representative organisations that meet the admissibility requirements are eligible for appointment. The appointment therefore takes place after the court has ruled on admissibility, often in the same judgment.^[21]

Exclusive representative on appeal

There is debate as to whether a new exclusive representative must be appointed in appeal proceedings. One view is that a new appointment is required on appeal.^[22] Another view is that the appointment made by the court of first instance, in principle, continues to apply on appeal and in cassation.^[23]

The fact that an exclusive representative is appointed and performs the procedural acts does not deprive a representative organisation that remains a party to the proceedings, of the right to lodge an appeal.

What is the role of the other representative organisations in the proceedings?

Representative organisations that are not appointed as exclusive representative remain parties to the proceedings. In principle, they do not file procedural documents.

Non-selected representative organisations must cooperate with the exclusive representative and provide input through that exclusive representative. They have access to the documents exchanged in the proceedings. By reviewing the procedural documents, they can assess, for example, whether the interests of those represented are adequately safeguarded. In a judgment of the Amsterdam District Court, it was expressly ruled that non-selected representative organisations may participate in hearings.^[24]

Non-selected representative organisations can also monitor whether the exclusive representative continues to meet the admissibility requirements. If not, they can raise this with the court, which may decide to replace the exclusive representative.^[25]

The law provides little guidance on the treatment of non-selected representative organisations. How the court deals with them depends on the specific case, which may vary. Relevant factors include whether there is only one other representative organisation besides the exclusive representative or many more. When organising the proceedings, the court must balance the need for effective coordination of the collective case against ensuring sufficient access to the court for all representative organisations.^[26]

Conflicts may arise regarding procedural strategy. As a rule, non-selected representative organisations may not perform procedural acts. However, where the court receives signals of a conflict, it may allow a non-selected representative organisation to take certain procedural steps.^[27]

Conclusion

After the court has ruled on the admissibility of the representative organisations involved, it appoints, in principle, an exclusive representative to ensure efficient case management. The substantive phase does not start immediately after that appointment. Injured parties are first given the opportunity to exercise the first opt‑out option. This topic will be further explained in the next Insight by Osborne Clarke’s experts.