Collective or Class Actions and Claims Aggregation in the Netherlands

The Dutch legal system is well known for its progressive and increasingly popular possibility to seek redress for collective damages. The introduction of the Netherlands Commercial Court, which allows parties to litigate in English, could potentially further increase the popularity of the Netherlands as a forum for collective actions.[2] Currently, four different legal mechanisms can be used to claim collective damages: a collective claim brought by a foundation (stichting), association or public entity representing a common interest;[3] the transfer of individual claims to a foundation initiating proceedings in its own name (also known as assignment of claims);[4] a collective settlement procedure under the Class Actions Settlement Act 2005; and since 1 January 2020 a collective settlement procedure under the Settlement of Large-scale Losses or Damage (Class Actions) Act, which is the new regime applicable to collective actions relating to events having occurred from 15 November 2016 onwards. The Class Actions Settlement Act will continue to apply to events occurring before that date.

All mechanisms offer a solution for those cases in which a large number of injured parties suffer damages as a result of the same or similar behaviour of another party or parties. This allows for redress where the losses suffered by each individual party do not exceed the costs of initiating individual proceedings. In this event, the parties who suffered damages would usually not lodge a claim or initiate negotiations if it were not for the collective redress mechanisms offering them a solution to seek damages or settle their claims without having to go through lengthy and expensive individual proceedings. The collective redress mechanisms are also beneficial for defendants, as these enable them to settle various damages claims at once without having to face multiple distinct settlement negotiations or proceedings in court. This chapter provides a deep dive into the different mechanisms, their limitations, the recent reform of the Settlement of Large scale Losses or Damage (Class Actions) Act and the potential effects of that reform.

Collective claims and public interest claims

The Dutch Civil Code provides a legal basis for organisations (or public entities) having legal capacity, to act for the common interests of parties who have suffered mass damages (a collective), provided that the organisation has the statutory aim of promoting the collective’s interests.[5] An important limitation to such proceedings is that it cannot be used to claim monetary compensation. Most claims initiated by representative organisations are accordingly requests for declarations of law establishing liability for unlawful behaviour, whereas in cartel damages cases, the unlawfulness of the behaviour (not the liability for damages) is typically already established by the cartel decision of national or EU competition authorities. So far, there is accordingly no substantive case law on collective claims and public interest claims relating to cartel damages.[6]

The representative organisation bringing a collective claim need not be Dutch, as long as its statutory purpose covers the interests at stake, which may be both idealistic (for example, the protection of the environment) or material (for example, the protection of investment losses). The representative organisation should also have actually developed certain activities to protect said statutory interests and it should have attempted to resolve the dispute out of court.[7] To meet the latter requirement, it suffices that two weeks have passed after a mere attempt to enter into discussions.

Proceedings may be initiated in any district court in the Netherlands, but the case may be referred to another court if another collective claim concerning the same facts is already pending at a different court. Some courts have in the past also assessed whether the representative adheres to the principles of the claim code (soft law) before deciding whether to admit the collective claim.[8]

A collective claims proceeding initiated by a representative organisation does not involve the injured parties or entities whose interests it promotes. The injured parties are not a party to the proceedings and can equally not prevent a representative organisation from filing a claim.[9] The collective claim neither affects the possibility of the injured parties being represented from claiming damages in court. Should injured parties wish to receive financial compensation for their losses, they would have to file their own claim in any event, since representative organisations cannot lodge a claim for monetary compensation. This, however, does not render the procedure meaningless. The most common claims initiated by representative organisations are declarations of law establishing liability of the party causing the damages. Such declaration can be used by injured parties to initiate their individual compensation claims in court, despite the declaratory judgment being binding upon the representative organisation and the defendant only (since the injured parties were not a party to the proceedings). The declaratory judgment can then serve as proof of liability, following which the individual damages proceedings will generally be faster, cheaper and less extensive. The mechanism is thus particularly attractive for claimants whose individual damages are limited in scope.

A downside of the mechanism is, however, that an exoneration of the defendant may potentially also have a (negative) effect on the injured parties who were not a party in the representative proceedings and who seek to lodge their own compensation claims in court. The alleged defendant could then attempt to rely on the exonerating judgment as a defence in the separate individual proceedings. To resolve this downside of the mechanism, the Dutch Civil Code provides an easy opt-out of the effects of any such judgment for injured parties by simply contesting the effects of the judgement. There are no formal requirements to the opt-out, so that a declaration stating that one does not want to be bound by the effects of a representative judgement would suffice.

Assignment of claims

The Dutch Civil Code also entails a mechanism on the basis of which claims can be transferred to another party (also known as assignment of claims).[10] The assignment of a claim entails the transfer of a claim in a property-law sense. This means that the original claimant loses its ownership over the claim and accordingly its right to pursue the transferred claim in court or to invoke it against a third party. This property-law transfer of the claim is distinct from the contractual question of whether the party to whom the claim is transferred actually ‘buys and pays’ for the claim already upon transfer or only in the event the subsequent damage proceedings are successful.

The mechanism enabling assignment of claims was not specifically developed for mass claims. An assignment can also be used to transfer a single claim against a third party from one individual to another, for example, to off-set a particular debt corresponding to the value of the claim transferred. Despite the mechanism not being designed to redress mass damages, it is widely used for said purpose through the bundling of claims in a special purpose vehicle, usually a foundation (stichting).

Ever since the entry into force of the 2014 EU cartel damages directive and its implementation in Dutch law in 2017,[11] multiple claims vehicles have been established for the purpose of pursuing cartel damage claims in Dutch courts. Claim vehicles seek to bundle claims of purchasers of products allegedly affected by a cartel and lodge cartel damages claims in their own name. They hire their own lawyers and experts, write their own submissions and carry the costs of the proceedings either themselves or through third-party funding. Individual claimants having assigned their claims to a claim vehicle are in principle not involved in the procedure. The assignment of the claim to the claim vehicle, however, doesn’t relieve the claim vehicle of having to prove and substantiate each individual claim, as well as the legal transfer of each claim.[12]

Collective settlement procedures

The Class Actions Settlement Act

The Class Actions Settlement Act applies to claims relating to events that occurred prior to 15 November 2016 and provides a legal basis for a group of injured parties to conclude a settlement agreement with the party or parties causing mass damages, using the help of a representative.[13] The representative of the interests of the injured parties, usually a special-purpose foundation (stichting), can conclude a settlement agreement with the party or parties causing the damage, which can then be declared generally binding on the basis of the Class Actions Settlement Act by the Amsterdam Court of Appeal. Following that declaration of the Court, the agreement applies to the entire class of parties injured by the single event, including those who were not involved in the conclusion of the settlement agreement.

The Class Actions Settlement Act provides a way out for injured parties not wanting to be bound by the settlement agreement. This is known as the opt-out mechanism. If a party does not want to be part of the collective, he or she may within a certain period of time set by the court (which must be at least three months), indicate that he or she does not want to participate in the settlement agreement. A reason to opt-out could be to keep open the possibility of conducting individual negotiations or to lodge individual claims in court. It should be noted, however, that individual proceedings may be suspended at the request of the defendant until the court has declared the settlement agreement generally binding.[14]

The Class Actions Settlement Act is a potentially useful tool for parties suffering damages who do not have the means to initiate individual proceedings, as it guarantees a prospect of compensation within a foreseeable time should the court declare the settlement generally binding. The mechanism may, however, be unfavourable for those who do have the means to initiate proceedings, as they too will be bound by the settlement agreement and dependent on the representative conducting the negotiations. Those parties will have to make sure they opt-out on time, while running the risk that their individual proceedings will be stayed. The party or parties causing the damages on the other hand can benefit from such stay, while having the chance to settle multiple damages claims at once, rather than dealing with numerous individual proceedings.

Since its entry into force in July 2005, the Class Actions Settlement Act has been applied on several occasions. Nine class settlement agreements have been declared binding on the basis of the Class Actions Settlement Act since its entry into force. None of these cases concerned cartel damages claims, but rather claims from large numbers of consumers having suffered relatively low-value damages (as opposed to larger cartel damages claims from business customers).[15] The mechanism is well-known outside the Netherlands and has been used even in cases that lack a strong connection to the Netherlands. The Amsterdam Court of Appeal (having exclusive jurisdiction to declare collective settlement agreements binding) has in the past accepted jurisdiction when only few injured parties were based in the Netherlands. The Shell and Converium cases[16] are among the most well-known cases to that effect.

In 2004, it emerged that Shell had overstated its oil reserves. As soon as the lower oil and gas stocks were announced, the share price fell causing damage to investors. Shell eventually settled the case, covering damages of institutional investors in many jurisdictions in relation to securities traded on any stock exchange (but the New York Stock Exchange) between 8 April 1999 and 18 March 2004. The Amsterdam Court of Appeal declared the settlement binding on 29 May 2009,[17] being the first international application of the class settlement mechanism. The Court’s jurisdiction was based on the nationality of one of the defending Shell entities rather than the nationalities of the investors, thereby opening up the possibility for foreign aggrieved parties to seek damages in the Netherlands on the basis of the Class Actions Settlement Act.

Another interesting case illustrating that the Dutch Court of Appeal is willing to accept jurisdiction in cases that have a limited nexus to the Netherlands is the Converium case.[18] The Converium decision was prompted by a dispute concerning a decline in share value following the IPO of the Swiss Converium Holding AG, having its shares registered on the Swiss stock exchange and derivatives on the American stock exchange. The alleged wrongdoing and harm occurred outside the Netherlands. In addition, none of the potentially liable entities and very few of the interested parties were domiciled in the Netherlands. However, the Dutch Court of Appeal accepted jurisdiction, implying that even without any interested party having domicile in the Netherlands, the Amsterdam Court of Appeal could potentially have jurisdiction as long as a Dutch foundation would represent the interested parties in the Dutch proceedings. From 2020 onwards, not many new precedents are to be expected given the entry into force on 1 January 2020 of the new Settlement of Large-scale Losses or Damages (Class Actions) Act, which applies to collective actions relating to events having occurred from 15 November 2016 onwards. Claims relating to events that occurred prior to 15 November 2016 will still be settled in accordance with the Class Actions Settlement Act.

Limitations of the Class Actions Settlement Act

Despite its successes, a significant drawback of the Class Actions Settlement Act is that it assumes that the parties involved can reach a settlement, where in practice this may be difficult should the parties have fundamentally different views on the question of liability. In that case, the representative attempting the settlement could instead lodge a collective claim requesting the court to establish liability of the party or parties causing the alleged damages. If the court does so, the judgement may subsequently be used in individual proceedings lodged by the injured parties seeking financial damages. That mechanism accordingly assumes a two-step approach to obtain compensation for damages: a collective action seeking a declaratory judgment as the basis for liability and an individual procedure to seek financial redress. This is both cumbersome and time-consuming. The only alternative available until the reform of the Settlement of Large-scale Losses or Damage (Class Actions) Act was for the injured parties to assign their claims to a special purpose vehicle. In this case, the individual claimant loses its right to the claim and receiving damages will become dependent on a contractual agreement concluded with the claim vehicle.

Some criticism has also been made as regards the opt-out mechanism under the Class Actions Settlement Act. Aggrieved parties must already decide whether to opt-out at the beginning of the settlement procedure when they do not yet know what the results of the settlement procedure would be. Another implication of the opt-out has to do with trying to get a better understanding of the scope of the case. The opt-out system does not allow defendants to distinguish between parties who have proactively chosen not to opt-out because they want to participate in the proceedings and parties who fail to opt-out because they are simply not interested in or aware of the case. This could affect the negotiations between the representative and the alleged defendant, as the defendant will, as a result, not know how many parties are likely to execute the settlement agreement and seek payment under the settlement agreement.

It is against the background of critiques such as the ones mentioned above that the reform of the Settlement of Large-scale Losses or Damage (Class Actions) Act was introduced.

The reform of the Settlement of Large-scale Losses or Damage (Class Actions) Act

On 19 March 2019, the Dutch Senate adopted the Settlement of Large-scale Losses or Damage Act, which entered into force on 1 January 2020 and applies to collective actions relating to events having occurred from 15 November 2016 onwards. The Act amends the provisions relating to collective claims (Article 3:305a of the Dutch Civil Code) and introduces specific rules for collective actions in Articles 1018b – 1018m of the Dutch Code of Civil Procedure.[19]

As a result of the reform, representative organisations are able to seek financial damages in collective claims proceedings, thereby opening the possibility for monetary compensation claims. To streamline different class actions, representative organisations are required to register their writ in a central register.[20] So far, 12 writs have been registered, none of which relate to cartel damages claims.[21] Should multiple representative organisations register writs relating to the same event and involving similar factual and legal issues, they will be referred to the same court,[22] provided the representative is admissible.[23] The different proceedings will then be consolidated and the court will appoint one exclusive representative that it believes is most suitable to litigate on behalf of all the representative organisations. The court, in doing so, takes into account the size of the collective whose interests are being represented, the size of the financial interests of the represented parties, the other activities of the representative and the previous activities of or collective claims initiated by the representative.[24]

The admissibility criteria for representatives initiating proceedings are stricter following the reform, especially since the reform has the purpose of having one exclusive representative acting on behalf of all parties in the proceedings. The court will review whether these factual requirements for admissibility have been fulfilled. The representatives should not only have a supervisory body, they should also have appropriate and effective mechanisms for participation or representation in the decision-making of the persons whose interests are pursued by the claim, as well as sufficient means to pursue a claim and an accessible internet page with information on the representative.[25] The latter should include information on the representative’s experience and skills in relation to initiating collective proceedings, among other things such as the articles of association of the representative.[26] Board members of the representative may not pursue a profit via the representative.[27] Similarly, the control over the claim and procedure should rest with the representative to a sufficient degree and not with the third-party funding litigation,[28] as that could negatively affect the interests of the injured parties. The claim should also have a sufficient nexus with the Dutch jurisdiction, which is the case when: the representative demonstrates sufficiently plausibly that most of the parties whose interests it represents have their usual residence In the Netherlands; the defendant has its residence in the Netherlands and there are additional circumstances that suggest a connection to the Dutch jurisdiction; or if the event causing the damages occurred in the Netherlands.[29] The representative should also prove that given the circumstances, he has made sufficient efforts to amicably resolve the claim.[30] This is however not likely to significantly hinder admissibility, as it suffices that two weeks have passed after the defendant has been asked to enter into discussions. In a recent judgment for preliminary relief proceedings,[31] the court also confirmed that the requirement to attempt an amicable solution does not hinder admissibility if consultation between the parties could not reasonably have contributed to resolving the dispute.[32]

Should the court decide that the claim is admissible and the representative has standing, national injured parties get the chance to opt-out (similar to the mechanism applicable under the Class Actions Settlement Act). Those parties will then not be bound by the judgment rendered in the proceedings between the defendant and the exclusive representative appointed by the court. Foreign injured parties will in principle not be bound by the judgment, unless they opt-in after the appointment of the exclusive representative.[33]

National injured parties will accordingly have to determine whether they want to participate in the collective procedure or whether they believe they may have better chances initiating individual proceedings or assigning their claims, in which event they should opt-out. For foreign parties, the original legislative proposal entailed a different mechanism prescribing that the claim had to have a sufficiently close connection to the Netherlands, which is the case if the majority of parties whose interests are protected are domiciled in the Netherlands, or the defendant is domiciled in the Netherlands, or the event causing the damages took place in the Netherlands. Despite the proposal’s purpose of preventing that too many cases would be initiated in the Netherlands without having a (sufficient) connection to the Netherlands, there was a fear that this rule would introduce too wide a scope for foreign claims. The legislative proposal was accordingly amended by introducing an opt-in mechanism for foreign injured parties wanting to participate in the collective proceedings.[34] That opt-in mechanism has now entered into force. As a result, foreign interested parties are not involved in any proceedings whatsoever unless they opt-in. This is in line with the European Commission’s advice for an opt-in mechanism (rather than an opt-out) mechanism for collective damages claims.[35]

After the appointment of the representative, the court will, under the new procedure, order the parties to try to settle the case.[36] The rationale of the measure is to incentivise defendants more strongly to enter into settlements (in comparison to the regime under the Class Actions Settlement Act pursuant to which claimants had no chance of seeking monetary compensation in a class action when settlement negotiations failed to succeed). The new mechanism accordingly introduces a threat for the defendant of the court awarding monetary compensation should settlement negotiations fail, which is likely to increase the chances of a successful settlement.

If settlement negotiations turn out successful, the parties must submit the settlement to the court for approval. If not, the court may settle the collective claim. In doing so, the court has the discretion to first ask the exclusive representative and defendant to submit collective claims settlement proposals. When settling the collective claim, the court will take into account such proposals (provided these have been submitted) while determining the compensation in categories where possible, so that the amount of compensation is reasonable for each subgroup of injured parties.[37] As the court will accordingly decide on the damages awarded to each subgroup, this can also be seen as a ‘forced settlement’. As such a ‘forced settlement’ could have far-reaching consequences, another opt-out possibility was eventually included in the legislative proposal that entered into force. If the proceedings end with a court decision in which the court establishes a collective settlement that (certain) injured parties do not perceive beneficial, those injured parties now have a second chance to opt-out of the collective settlement.[38] Injured parties accordingly have a first possibility to opt-out at the beginning of the proceedings[39], as well as an additional possibility to opt-out when the court establishes a settlement agreement.[40] This could be to the detriment of defendants seeking to settle as many claims a possible while going through the settlement procedure.

Potential effects of the reform

The new regime enables individuals and entities that incurred damages following the same events to collectively claim monetary compensation in court. The two-staged approach (a collective proceeding to obtain a declaratory judgment on liability and the individual proceeding to seek monetary compensation on the basis of said declaration) no longer has to be followed to obtain damages, as judges can now decide on the question of liability and the quantum of damages in a single procedure. Though this brings many benefits, there are also some nuances that deserve attention. For example, it may be difficult for the exclusive representative to align the different views of all parties it represents, which could potentially lead to disputes among claimants.

It also remains to be seen how widely used the new Act will become, for cartel damages claims in particular. One could, for instance, wonder whether the more stringent admissibility criteria will prevent the Settlement of Large-scale Losses or Damage (Class Actions) Act from becoming a success. Currently, cartel damages claims in the Netherlands are usually initiated by (commercial) claim vehicles that have had claims assigned to them. It is not very likely that this mechanism will be replaced by the Settlement of Large-scale Losses or Damage (Class Actions) Act, as the claim vehicles initiating said proceedings usually have a profit motive following which they would be inadmissible under the Settlement of Large-scale Losses or Damage (Class Actions) Act. That is of course unless a court would rule that commercial claim vehicles initiating proceedings on the basis of claims they got assigned would constitute a (potentially illegitimate) circumvention of the more stringent admissibility criteria that would apply to claims initiated under the Settlement of Large-scale Losses or Damages (Class Actions) Act. Any such court ruling could potentially render said claim vehicles inadmissible.

Another element of the Settlement of Large-scale Losses or Damages (Class Actions) Act that could potentially affect its attractiveness is that claimants face the risk that they will not get a (for them) sufficient amount of damages rewarded, as the court will award reasonable amounts of compensation to different categories of injured parties. This may render the mechanism less attractive for commercial claim vehicles even in a scenario in which they would be admitted.

One could conclude that the Settlement of Large-scale Losses or Damage (Class Actions) Act and the assignment of claims mechanism are likely to continue to exist next to one another, unless a court would rule otherwise. That does however not mean that cases litigated on the basis of claims assignment will not experience hindrance from the Settlement of Large-scale Losses or Damage (Class Actions) Act: the claim vehicles could be bound by other proceedings under the Settlement of Large-scale Losses or Damage (Class Actions) Act until they opt-out. When subsequently installing their individual claims, their cases are most likely to be suspended until the court has decided on the collective claim.[41] Despite the claim vehicle having the possibility to request termination of the suspension, they will first have to wait one year before they can do so.[42] The already lengthy cartel damages proceedings initiated by claim vehicles may accordingly become even lengthier as a consequence of the new reform.


Notes

1 Kees Schillemans is a partner, Emma Besselink is a senior associate, and Eline Vancraybex and Hannelore Vanderveen are associates at Allen & Overy LLP. Special thanks to M Livestro for her valuable contribution to this chapter.

2 So far, the NCC rendered six decisions. However, none of related to a collective action. An overview of decisions rendered by the NCC can be found through the following link: https://www.rechtspraak.nl/English/NCC/Pages/judgments.aspx

3 Articles 3:305a-3:305d of the Dutch Civil Code.

4 Article 3:94 of the Dutch Civil Code.

5 Articles 3:305a-3:305d Dutch Civil Code.

6 We note that such case law may follow, as the Consumers’ Association initiated a collective claim against Phillips a.o. in relation to the CPT/CDT cartel (Amsterdam Court, 29-03-2018, ECLI:NL:RBAMS:2018:1682) and Stichting Elco Foundation against Rabobank a.o. in relation to the Libor scandal (Amsterdam Court, 14-08-2019, ECLI:NL:RBAMS:2019:5827). In both cases, a decision on the merits is yet to follow.

7 Article 3:305b Dutch Civil Code.

8 Amsterdam District Court 30 November 2016, ECLI:NL:RBAMS:2016:7841 (Trafigura).

9 Dutch Supreme Court 26 February 2010, NJ 2011/473, ECLI:NL:HR:2010:BK5756 (Clara Wichmann/Staat).

10 Article 3:94 Dutch Civil Code.

11 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union; amendment of national substantive and procedural rules in the Dutch Civil Code and the Dutch Code of Civil Procedure on 10 February 2017.

12 See, for example, Rotterdam District Court, 29 May 2019, case C/10/439791/HAZA13-1278; Amsterdam District Court, 15 May 2019, case C/13/639718/HAZA17-1255; Amsterdam District Court, 11 September 2019, cases C/13/562256 / HA ZA 14-348 (SCC I) and C/13/604492 / HA ZA 16-301 (SCC II) and others.

13 The collective settlement procedure on the basis of the Class Actions Settlement Act is laid down in Articles 7:907-910 Dutch Civil Code and Articles 7:1013-1018a of the Dutch Code of Civil Procedure.

14 Article 1015 Dutch Code of Civil Procedure.

15 Amsterdam Court of Appeal 1 June 2006, LJN AX6440, NJ 2006/461 (DES); Amsterdam Court of Appeal 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia); Amsterdam Court of Appeal 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d’Or); Amsterdam Court of Appeal 29 May 2009, LJN BI5744, JOR 2009/197 (Shell); Amsterdam Court of Appeal 15 July 2009, LJN BJ2691, JOR 2009/325 (Vedior); Amsterdam Court of Appeal 17 January 2012, LJN BV1026 (Converium); Amsterdam Court of Appeal 4 November 2014, JOR 2015/10 (DSB); Amsterdam Court of Appeal 24 June 2014, ECLI:NL:GHAMS:2014:2371 (DES II); and Amsterdam Court of Appeal 13 July 2018, ECLI:NL:GHAMS:2018:2422 (Ageas).

16 Amsterdam Court of Appeal 29 May 2009, LJN BI5744, JOR 2009/197 (Shell); Amsterdam Court of Appeal 15 July 2009, LJN BJ2691, JOR 2009/325 (Vedior); Amsterdam Court of Appeal 17 January 2012, LJN BV1026 (Converium).

17 Gerechtshof Amsterdam, 29-05-2009, ECLI:NL:GHAMS:2009:BI5744 (Shell).

18 Gerechtshof Amsterdam, 17-01-2012, ECLI:NL:GHAMS:2012:BV1026 (Converium).

19 Amendment of the Dutch Civil Code and the Dutch Code of Civil Procedure (Settlement of Large-scale Losses or Damage (Class Actions) Act), submitted on 15 November 2016, Dutch Senate: www.eerstekamer.nl/wetsvoorstel/34608_wet_afwikkeling_massaschade.

20 Article 1018c(2) Dutch Code of Civil Procedure; the register is accessible via https://www.rechtspraak.nl/Registers/centraal-register-voor-collectieve-vorderingen.

21 Three out of 12 class actions relate to the diesel emissions scandal, namely a claim installed against Volkswagen cs on 16 March 2020, a claim installed against Daimler A.G. cs on 31 July 2020 and a claim installed against Fyat Chrysler Automobiles N.V. cs on 24 August 2020.

22 Article 1018c(6) Dutch Code of Civil Procedure.

23 Article 3:305a(2)(3) Dutch Civil Code entails the admissibility criteria, which are more stringent in comparison to the regime under the Class Actions Settlement Act.

24 Article 1018e Dutch Code of Civil Procedure.

25 Article 3:305a(2) Dutch Civil Code.

26 Article 3:305a(2) Dutch Civil Code.

27 Article 3:305a(3)a Dutch Civil Code.

28 Article 3:305a(2)c Dutch Civil Code.

29 Article 3:305a(3)b Dutch Civil Code.

30 Article 3:305a(3)c Dutch Civil Code.

31 Only proceedings on the merits are registered in the registry, not preliminary relief proceedings. So far, there have been three preliminary relief proceedings in which a collective action was installed on the basis of article 3:305a Dutch Civil Code, none of which concerned cartel damages claims.

32 District Court of Midden-Nederland, 01-07-2020, ECLI:NL:RBMNE:2020:2780, para. 3.4.

33 Article 1018f Dutch Code of Civil Procedure.

34 The court may decide that in some cases the opt-out mechanism also applies to foreign injured parties, see Proposed Article 1018f(5) Dutch Code of Civil Procedure.

35 Commission recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, 2013/396/EU, Recommendation 21.

36 Article 1018g Dutch Code of Civil Procedure.

37 Article 1018i Dutch Code of Civil Procedure.

38 Article 1018h(5) jo. 1018f(1)–(4) Dutch Code of Civil Procedure.

39 Article 1018f(1) Dutch Code of Civil Procedure.

40 Article 1018h(5) Dutch Code of Civil Procedure.

41 Article 1018m(1) Dutch Code of Civil Procedure.

42 Proposed Article 1018m(2) Dutch Code of Civil Procedure.

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