The settlement of mass claims under the WAMCA

The (collective) settlement agreement

The Settling of Large-scale Losses or Damage (Class Actions) Act (the “WAMCA”) aims to promote the efficient and effective settlement of mass claims. Although the introduction of the WAMCA has introduced the possibility of claiming collective damages, one of the core objectives of the WAMCA is to make reaching an amicable settlement agreement more attractive. Parliamentary history repeatedly emphasises that a collective settlement agreement is preferable to a judgment on the claims. Against this background, the right to collective damages serves as an incentive for the parties to reach an amicable settlement agreement. [1]

Below, we will examine in more detail the ways in which mass claims under the WAMCA can be settled, namely (i) by reaching a court-approved settlement agreement, whereby a settlement agreement is approved by the court, and (ii) by reaching an out-of-court settlement agreement. We then discuss the courts judgment on the settlement of the mass claims and conclude with a number of comments on the costs associated with the proceedings.

The court-approved settlement agreement

As set out in our Insight on the Settlement Phase, the parties may reach a court-approved settlement agreement at any stage of the WAMCA proceedings. To this end, they enter into a settlement agreement as referred to in Article 7:907 of the Dutch Civil Code ("DCC"), which they submit to the court for approval pursuant to Article 1018h(1) of the Dutch Code of Civil Procedure ("DCCP").

The WAMCA proceedings have various stages at which a settlement agreement may be reached, and the point at which the settlement is reached is relevant to the question of who is bound by it:

• If the settlement agreement is reached before the exclusive representative has been appointed and before the opt-out and opt-in phases have taken place, the group of persons bound by the settlement agreement has not yet been defined by a court. 
• If, on the other hand, the settlement agreement is reached after the opt-out and opt-in phases have been completed, the settlement agreement applies, in principle, to the narrowly defined group of injured parties who opted in timely or did not make use of the opt-out option (see also our Insight on opt-in and opt-out options).

In both cases, however, the injured parties are given a (second) opportunity to opt out of participation. Article 1018f(1) to (4) DCCP has been declared to apply mutatis mutandis to the approved agreement, meaning that the entire opt-out option – including the minimum period of one month – applies following approval of the settlement agreement. [2] This (second) opt-out option is justified because, in a settlement agreement, injured parties generally waive (part of) their rights in exchange for compensation that is often lower than originally claimed.

Whereas under the Settling of Large-scale Losses or Damage Act (the "WCAM’) the Amsterdam Court of Appeal has exclusive jurisdiction, the WAMCA does not contain such a concentration provision. This means that, in WAMCA proceedings, the parties must submit the application for approval to the court currently hearing the WAMCA proceedings. [3]

Once the application for approval has been submitted to the competent court, the approval proceedings commence. 

The requirements of the settlement agreement

Article 7:907(2) of the DCC stipulates that the agreement submitted to the court must, in any event, contain the following elements:

• a description of the event or events to which the agreement relates;
• a description of the group or groups of persons for whose benefit the agreement has been concluded, taking into account the nature and severity of their loss;
• an indication, as precise as possible, of the number of persons belonging to this group or these groups;
• the compensation to be awarded to these persons
• the conditions which these persons must meet in order to be eligible for that compensation;
• the manner in which the compensation is determined and may be obtained; and
• the name and place of residence of the person to whom the opt-out notice must be addressed.

Approval by the court

The court will assess the settlement agreement on the basis of the criteria set out in Article 7:907(3) of the DCC. The court will reject the application if the answer to one or more of the following questions is in the negative: [4]

• Does the agreement meet the requirements of Article 7:907(2) of the DCC?
• Is the amount of the compensation awarded reasonable? This involves considering the extent of the damage, the speed with which the compensation can be obtained, and the possible causes of the damage;
• Is there sufficient certainty that the compensation can actually be paid? 
• Does the agreement provide for the resolution of disputes concerning its performance by an independent body other than the court?
• Are the interests of the persons concerned adequately safeguarded? 
• Are the relevant interest groups sufficiently representative? 
• Is the group of persons for whose benefit the agreement has been concluded of sufficient size to justify a declaration of binding effect? 
• Is the paying legal entity also a party to the agreement? 

Practice under the WCAM shows that two points in particular are central to the assessment: (i) the extent to which the representative organisation actually represents the injured parties and (ii) the reasonableness of the agreed compensation. In WAMCA proceedings, the court assesses the representativeness of the representative organisation as part of the admissibility assessment. Both the organisations designated as (potential) or exclusive representatives and other relevant representative organisations must continue to meet these admissibility requirements throughout the entire WAMCA proceedings. It therefore stands to reason that, where the application for approval of a WAMCA settlement agreement is made after the court has already ruled on representativeness during the admissibility phase, the court will, in principle, not re-examine this point in full during the approval proceedings, unless there are specific grounds for doing so. [5]

The settlement agreement sets out how the damages are to be settled and which independent party will decide who is entitled to a payment and in what amount. [6] If the settlement agreement provides for a single lump sum, the remaining payments will be reduced proportionally should that amount prove insufficient, unless the parties have agreed otherwise. If any money remains, the paying party may apply to the court to recover the balance. That application will be dismissed if it is not sufficiently plausible that all those entitled to compensation have been paid or can still be paid. [7]

The settlement agreement usually also contains provisions regarding the allocation of costs and proceeds. For example, the agreement typically specifies which part of the compensation is payable to the injured parties and which part is intended to cover the costs incurred by the representative organisation. [8] The law does not expressly require that individual injured parties must explicitly consent to such a cost allocation. The injured parties' binding commitment to the settlement agreement – and thus to the cost allocation set out therein – arises from the court’s approval. As part of the approval procedure, the court assesses whether the interests of the injured parties are sufficiently safeguarded, which includes ensuring that the distribution of proceeds and costs is reasonable and proportionate. [9] Injured parties who do not agree with the terms of the settlement agreement, including the cost allocation, may make use of the opt-out option following approval of the settlement agreement.

If, in the course of this assessment, the court concludes that the settlement agreement is deficient in certain respects, this does not necessarily lead to its rejection. Before rejecting or approving the settlement agreement, the court may, with the consent of the parties who have concluded the agreement, supplement or amend the agreement, or give the parties the opportunity to do so. [10]

Following approval, the injured parties must be enabled to claim their payment or to make use of the opt-out option. For this reason, the judgment approving the settlement agreement must be brought to the attention of the injured parties. To this end, the court has various powers, so as to ensure that injured parties are made aware of the approval of the settlement agreement and of the opt-out option. [11]

The out-of-court settlement agreement

In addition to the court settlement agreement discussed above, the question arises as to whether the parties can also reach a settlement agreement out of court. On this point, the law offers no clear-cut answer. Article 1018g DCCP does not, in fact, clarify whether the parties can also reach a settlement agreement on an opt-in basis, through the normal legal channels and without the intervention of the court, which applies exclusively between the parties directly involved, with the injured parties being offered an opt-in option.

It does, however, seem possible for representative organisations to reach an out-of-court settlement agreement on an opt-in basis. The representative organisation will still have to act in the interests of the injured parties and cannot act on behalf of any other representative organisations. In such a case, injured parties are only bound by the settlement agreement if they choose to be. [12]

The collective claims settlement by way of a judgment

If the parties cannot reach a settlement agreement, the matter will be decided by a court judgment. To date, no WAMCA proceedings have resulted in a final judgment in which collective damages have actually been awarded. Although some WAMCA proceedings have ended with claims being upheld, these cases did not involve claims for damages. [13] For example, the Court of Appeal in The Hague partially upheld claims in the form of declarations of law that the State and drinking water companies had acted unlawfully, and orders were issued to take measures, but these did not concern a claim for damages. [14]

Where the parties fail to reach a settlement agreement, the law provides for a collective claims settlement by way of a court judgment. [15] The collective claims settlement by way of a judgment covers both the scope and classification of the categories of damage, as well as practical arrangements for the injured parties regarding the claiming of compensation. As no proceedings have yet been concluded on the merits in which a claim for compensation has been awarded, there are no substantive rulings on the collective claims settlement by the court. On the basis of the WAMCA, the following applies. [16]

• The court may – but is not obliged to – order the exclusive representative and the defendant each to submit a proposal for a collective claims settlement. Compliance with such an order is mandatory. In the event of non-compliance, the court may draw whatever conclusions it deems appropriate. [17]
• Article 1018i(2) DCCP provides that the court, taking into account the proposals submitted, shall determine a collective settlement of claims aimed at securing compensation by the defendant for the losses suffered by the injured parties.
• Where possible, compensation must be determined by category, in accordance with the statutory provisions on compensation set out in Book 6 of the DCC, including Article 6:97 of the DCC. This gives the court the discretion to assess the damages suffered by the injured parties by category. [18] Given the large number of injured parties in a collective claims settlement, it is impracticable and inefficient to assess the individual damages of each injured party separately. [19]
• The collective claims settlement by way of a judgment must in any event include the elements prescribed for a court-approved settlement agreement in Article 7:907(2)(a) to (f) of the DCC (see above). [20]
• The amount of compensation awarded must be reasonable. [21]
• The interests of the injured parties must also be adequately safeguarded in other respects. [22] In the context of the claims settlement, it is not only the amount of compensation that is important; it is at least as important that the injured parties are able to obtain their compensation in a simple and swift manner. This means, amongst other things, that the claims process must be organised in such a way that injured parties can easily submit their claims, that it is clear and predictable which category of damage they fall into, and that this assessment is carried out by a sufficiently independent body. [23]

To date, no substantive court rulings have been handed down under the WAMCA regarding collective claims settlement. With regard to the requirements for reasonable compensation and the adequate safeguarding of the interests of the injured parties, we expect that the WCAM will serve as a model. Article 1018i DCCP stipulates that the court may establish a settlement for collective claims whereby (i) the amount of compensation to be awarded is reasonable and (ii) the interests of the persons for whom the claims are being settled are also sufficiently safeguarded in other respects. These requirements are consistent with the safeguards laid down in Article 7:907(3)(b) of the DCC, which apply both to the declaration of a settlement agreement as generally binding under the WCAM and to the approval of a settlement agreement under the WAMCA.

Binding effect of a court order 

With regard to the question of who is bound by the judgment on the collective claims settlement, there is a significant difference compared with a court-approved settlement agreement: in the case of a judgment, there is no second opt-out opportunity. If the court determines the collective claims settlement, all injured parties who have not opted out (during the opt-out and opt-in phases following the appointment of the exclusive representative) are bound by it. [24]

An exception applies to an injured party who only becomes aware of the damage at a later date. A person who was unaware of their damage at the time of the court’s ruling or the court’s approval of the settlement agreement is not bound if, after becoming aware of their damage, they state in writing that they do not wish to be bound by the court’s ruling or the court-approved settlement, respectively. [25]

Costs associated with the proceedings

In addition to the substantive settlement of the compensation, the reimbursement of the (legal) costs incurred also plays an important role in the settlement of the collective action. The claimant(s) (the representative organisation(s)) and the defendant(s) will all incur substantial costs in the context of a collective action.

Legal costs

In principle, the standard rules on legal costs set out in Article 237 et seq. DCCP apply to collective actions. This article stipulates that, in principle, the unsuccessful party must reimburse the other party’s legal costs. This means that lawyers’ fees are reimbursed only on a flat-rate basis via the so-called ‘liquidation rate’, a points system whereby a fixed number of points is allocated for each procedural step, multiplied by a rate that depends on the value of the case. As a result, usually only a fraction of the costs actually incurred is reimbursed, which – particularly in collective actions, where legal costs are generally substantial – can lead to a significant discrepancy between the actual costs and the reimbursement of legal costs.

Article 1018l(1) DCCP concerns an additional provision for collective actions. If the court finds that a claim is manifestly unfounded, it may, in its order on costs, increase the opposing party’s lawyer’s fees (as calculated in accordance with the liquidation rate) by up to five times, unless this would be unreasonable. This is intended to prevent financiers and representative organisations from bringing frivolous claims. [26] Pursuant to paragraph 2 of the same article, the court may order the defendant to pay both the legal costs and other costs incurred by a representative organisation, provided that those costs are reasonable and proportionate and that equity does not preclude this. [27] The court has discretionary power in this regard. When ordering the payment of legal costs, a court may distinguish between the representative organisation that acted as the exclusive representative and the less active representative organisations in the proceedings. [28]

This ensures that the legal costs actually incurred are reimbursed, so that the representative organisation is not left to bear the costs of, for example, the lawyers. [29] The rationale behind this provision is twofold: on the one hand, to alleviate the financial burden on representative organisations, and on the other hand, to prevent the defendant from deliberately withholding a settlement agreement in order to avoid being ordered to pay legal costs. [30] In a settlement agreement, it is customary for the costs incurred by the representative organisation to be included in the settlement agreement, meaning that, in the event of a settlement agreement, the defendant already contributes to the representative organisation's costs. Without the additional provision in Article 1018l(2) DCCP, the defendant might have a financial incentive to refuse a settlement agreement and allow the case to proceed to a judgment, knowing that the order to pay legal costs, based on the standard rate, would amount to only a fraction of the actual costs. [31]

Out-of-court costs

Out-of-court costs – such as costs of experts, bailiffs and legal advice – are regarded as a form of (financial) loss and are, in principle, reimbursed in full by the liable party. If the claims of the representative organisation(s) are dismissed, its costs are therefore not reimbursed. A distinctive feature of collective action is that the representative organisation can recover the out-of-court costs directly from the defendant (if the claims are upheld), even though it incurred those costs itself and the defendant is liable not to the representative organisation but to the injured parties. The injured party therefore does not have to advance the costs themselves or seek to recover them. Reimbursement is subject to the ‘double reasonableness test’: both the incurring of the costs and their amount must be reasonable. [32]

Conclusion

The WAMCA offers various options for settling mass claims. Although the legislator regards a court-approved settlement agreement as the most desirable outcome – and has explicitly established the right to collective compensation as a means of pressuring the parties to reach a settlement agreement – the WAMCA also provides for a collective claims settlement by way of judgment where the parties are unable to reach an agreement amongst themselves. 

This Insight concludes our series ‘Navigating Dutch Class Actions (WAMCA)’. In this series, we have examined the various aspects of the WAMCA proceedings. The WAMCA is a relatively new piece of legislation. In the coming years, the first substantive judgments on collective claims for damages will provide greater clarity on how the courts apply the legal framework in practice. We are monitoring these developments closely and would be happy to advise you on the opportunities and risks presented by the WAMCA.

1. ^ Vijf jaar WAMCA, Evaluatie Wet afwikkeling massaschade in collectieve actie (2020-2025), R. Rijnhout e.a., September 2025. Parliamentary Papers II 2016/17, 34608, No. 3, p. 1. 
2. ^  Article 1018h(5) of the Code of Civil Procedure. 
3. ^ T.D.A. Kluwen & P.W.R. van Hattum, 'De WAMCA-schikkingsregeling: artikel 1018h Rv ontcijferd en enkele aanbevelingen aan rechter en wetgever', TvPP 2025/3.  
4. ^ See Article 7:903(3) of the Civil Code. 
5. ^ T.D.A. Kluwen & P.W.R. van Hattum, 'De WAMCA-schikkingsregeling: artikel 1018h Rv ontcijferd en enkele aanbevelingen aan rechter en wetgever', TvPP 2025/3. 
6. ^ Article 1018h of the Code of Civil Procedure. 
7. ^ Article 1018h of the Code of Civil Procedure. T.D.A. Kluwen & P.W.R. van Hattum, 'De WAMCA-schikkingsregeling: artikel 1018h Rv ontcijferd en enkele aanbevelingen aan rechter en wetgever', TvPP 2025/3.
8. ^ Parliamentary Papers II 2016/17, 34608, no. 3, p. 51.
9. ^ Parliamentary Papers II 2016/17, 34608, No. 9, p. 5.
10. ^ Article 1018h(2) of the Code of Civil Procedure and Article 7:907(4) of the Civil Code.
11. ^ Article 1018h of the Code of Civil Procedure. Pursuant to Article 1018h(4) of the Code of Civil Procedure, the injured parties must also be notified if the court does not approve a settlement agreement that has been submitted. 
12. ^ T.D.A. Kluwen & P.W.R. van Hattum, 'De WAMCA-schikkingsregeling: artikel 1018h Rv ontcijferd en enkele aanbevelingen aan rechter en wetgever', TvPP 2025/3. R.M. Hermans, ‘Verjaring en Massaschade’, in: D.F.H. Stein, V. Tweehuysen & S.E. Bartels (red.), Verjaring (Onderneming en Recht nr. 120), Deventer: Wolters Kluwer 2020, p. 218.
13. ^ District Court of Amsterdam, 20 March 2024, ECLI:NL:RBAMS:2024:1512. Court of Appeal of The Hague, 19 March 2024, ECLI:NL:GHDHA:2024:363. District Court of Amsterdam, 16 February 2022, ECLI:NL:RBAMS:2022:557.  
14. ^ Court of Appeal of The Hague, 19 March 2024, ECLI:NL:GHDHA:2024:363, para. 7.1 et seq.
15. ^  Article 1018i of the Code of Civil Procedure. 
16. ^  Article 1018i of the Code of Civil Procedure. 
17. ^  Article 1018h of the Code of Civil Procedure. Parliamentary Papers II 2016/17, 34608, No. 3, p. 51. 
18. ^ Article 1018h of the Code of Civil Procedure. Parliamentary Papers II 2016/17, 34608, No. 3, p. 52. 
19. ^ Parliamentary Papers II 2016/17, 34608, No. 6, p. 16. 
20. ^ Article 1018i of the Code of Civil Procedure. 
21. ^ Article 1018i of the Code of Civil Procedure. 
22. ^ Article 1018i of the Code of Civil Procedure. 
23. ^ Article 1018h of the Code of Civil Procedure. Parliamentary Papers II 2016/17, 34608, No. 3, p. 52.
24. ^Article 1018k of the Code of Civil Procedure. 
25. ^ Article 1018k(2) of the Code of Civil Procedure. Article 7:903(3) of the Civil Code. See also our Insight on the Settlement Phase. 
26. ^ Parliamentary Papers II 2018/19, 34608, No. 18, p. 1.
27. ^ Article 1018l(2) of the Code of Civil Procedure therefore applies only to collective actions in which compensation is awarded. 
28. ^ Parliamentary Papers II 2018/19, 34608, No. 9, p. 4.
29. ^ Parliamentary Papers II 2018/19, 34608, No. 9, p. 5.
30. ^ B.V. Rozema, 'Financiering van collectieve acties: wie draait op voor de succesvergoeding van de financier?', NTBR 2023/25.
31. ^ Parliamentary Papers II 2016/17, 34608, No. 3, p. 12.
32. ^ Article 6:96 of the Dutch Civil Code. B.V. Rozema, 'Financiering van collectieve acties: wie draait op voor de succesvergoeding van de financier?', NTBR 2023/25.