The Settling of Large-scale Losses or Damage (Class Actions) Act (WAMCA) – an introduction

As of 1 January 2020, the Settling of Large‑scale Losses or Damage (Class Actions) Act (the “WAMCA”) entered into force. Since then, representative organisations in the Netherlands can bring a collective action seeking damages. This was not possible under the previous regime, the Settling of Large‑scale Losses or Damage Act (the “WCAM”). The WAMCA also introduces stricter requirements for representative organisations that wish to bring a collective action. In this series of Insights, Osborne Clarke’s experts explain how the Dutch class action regime works in practice.

This Insight focuses on the applicability of the WAMCA: who can bring a claim, and when the WAMCA applies.

Who can bring a claim under the WAMCA?

Advocating for others’ interests vs one’s own interest

As a rule, a (legal) person who initiates court proceedings must have a personal interest in those proceedings. The WCAM and WAMCA create an exception. Under Article 3:305a of the Dutch Civil Code (DCC), a foundation or association with full legal capacity may bring a claim to protect similar interests of other persons, insofar as it pursues those interests under its articles of association and those interests are sufficiently safeguarded.

In principle, these interests fall into two categories:

• Group interests: the personal interests of a group of identifiable individuals.
• Ideological interests: general or public interests that cannot be traced back to an identifiable group (for example, the nitrogen issue in the collective action brought by Greenpeace against the Dutch State).[1]

Requirements imposed on representative organisations under the WAMCA

To bring a collective action under the WAMCA, a representative organisation must satisfy several admissibility requirements relating to:

• purpose and statutory objectives
• representativeness
• finances and funding
• transparency and reporting
• supervision/oversight and governance
• organisational structure

If the organisation does not meet these requirements, it will be declared inadmissible. These admissibility requirements will be discussed in more detail in the next Insight.

Which events does the WAMCA apply to?

The WAMCA applies to claims instituted on or after 1 January 2020 that relate to an event or series of events occurring on or after 15 November 2016.

In practice, representative organisations often base claims on a sequence of events, some before and some after 15 November 2016. As a starting point, the applicable regime is determined by the time the last event underlying the claim occurred. There are exceptions. For example, the Oost‑Brabant District Court held that the damage‑causing events in that case largely occurred before 15 November 2016 and, therefore, the WAMCA did not apply; instead, the WCAM (the WAMCA’s predecessor) did.[2]

What is an “event” under the WAMCA?

There is considerable debate about the meaning of “event,” “events,” and “series of events.” Key questions include:

• Is the relevant event the act that caused the damage, the moment the damage occurred, or both?
• How do courts assess a sequence of acts versus a continuing course of conduct?

The District Court of The Hague considered that it concerns the “liability‑creating event(s) that the representative organisation has placed at the basis of the claim.”[3] However, case law does not provide a uniform method for determining the damage‑causing event.

Case law: emissions‑cheating software (Dieselgate) and Vattenfall

Emissions‑cheating software (Volkswagen/Mercedes/Fiat)

• District Court of Amsterdam: The court concluded that “event” does not include the harmful consequence of the event. Because the emissions‑cheating software was developed before 15 November 2016, the damage‑causing event occurred before that date; the later placing on the market of vehicles with that software was a harmful consequence and not relevant for WAMCA applicability.[4] The court therefore held that the WAMCA did not apply.
• Court of Appeal of Amsterdam: On appeal, the court held that placing on the market vehicles equipped with the emissions‑cheating software is the relevant “event(s)” to which the collective claims relate. The Court of Appeal did not accept that software development was the damage‑causing event. To the extent the vehicle models were also placed on the Dutch market after 15 November 2016, the WAMCA applies.[5]

Vattenfall (kW fee) 

In a collective action regarding the wrongful charging of a so‑called kW fee to business customers, the court considered multiple moments:

• The decision/policy to charge the fee; and
• The continued charging and collection of the fee. The court held that maintaining the unlawful situation by continuing to charge and collect the fee constituted a continuing tort. The WAMCA applies insofar as the claim concerns customers who were (also) invoiced for and paid the kW fee after 15 November 2016.[6]

Conclusion

Once the court establishes that the WAMCA applies to a collective action, the representative organisation must satisfy stringent admissibility requirements before it can be received in the action. The next Insight will address the admissibility phase under the WAMCA and its practical implications for claimant organisations and defendants.

[1] District Court of The Hague 6 March 2024, ECLI:NL:RBDHA:2024:3007. [2] District Court of Oost‑Brabant 26 January 2022, ECLI:NL:RBOBR:2022:207. [3] District Court of The Hague 20 September 2023, ECLI:NL:RBDHA:2023:14036, para. 5.48. [4] District Court of Amsterdam 30 March 2022, ECLI:NL:RBAMS:2022:1541, para. 5.30. [5] Court of Appeal of Amsterdam 13 August 2024, ECLI:NL:GHAMS:2024:2242, para. 4.11 et seq. [6] District Court of Amsterdam 1 February 2023, ECLI:NL:RBAMS:2023:403, para. 6.6.