It has now been more than two and a half years ago that the Act on Settlement of Mass Damage in Collective Action (WAMCA) came into effect. The WAMCA is based on the idea that defendants and injured parties should be offered as much finality as possible. In order to achieve this goal, the WAMCA has introduced a detailed system of procedural rules (Title 14A Book III Code of Civil Procedure (DCCP)). The recent judgment of the Amsterdam court (Court) gives cause to discuss one of these rules: the terms and conditions that apply to parties who wish to initiate their own proceedings in pending WAMCA cases.
In the present case, three separate interest groups, Stichting Diesel Emissions Justice (SDEJ), Stichting Car Claim (SCC, assisted by AKD) and Stichting Emission Claim (SEC) have brought claims against the Mercedes-Benz Group for its part in the diesel emissions scandal. SDEJ was the first interest group to register its summons on 31 July, 2020 in the central register for collective claims (Register). From that moment, competing interest groups could start collective proceedings relating to the same events within three months. The law also offers interest groups the opportunity to request the court within one month of the first registration in the Register to extend the three-month term by a maximum of three months (Article 1018d paragraphs 1 and 2 of the Dutch Civil Code).
SCC sent a timely letter to the Court requesting an extension of the three-month term. The Court granted SCC a two-month extension (until 31 December, 2020). On 30 December 2020, SCC registered its summons in the Register. On the same date, a third summons was also registered in the Register by a hitherto unknown interest group (SEC). Because SEC itself had not requested an extension of the three-month term, the preliminary question arose whether it could make use of the extension granted to SCC by the Court.
First, the Court notes that SEC’s position in the proceedings must be assessed on the basis of the procedural rules of the WAMCA, irrespective of the question whether the WAMCA ultimately applies to the claims. As claimants have chosen to base their claims on the WAMCA, this choice in principle determines the regime applicable to the commencement of the proceedings.
The Court held that, pursuant to the WAMCA, successive interest groups must issue their summons within the period of three months. If this term is not sufficient, interest groups can request the court for an extension. Such a request is not granted automatically. The court decides on the basis of the arguments brought forward by the requesting party, the first interest group and the defendants. Requests for extension that are not sufficiently substantiated are subject to rejection (see for example the decision of the Court in the TikTok case). The specific nature of this system precludes other interested parties from being able to piggyback on this extended term, bypassing assessment by the court of the relevant facts and circumstances. Any other decision would undermine one of the basic principles of the WAMCA, namely that it must be clear within three months of the first registration in the Register which other interest groups (if any) have come forward to represent the interests of the injured parties.
SEC did not issue its summons within the three-month period, nor did it request an extension from the Court. For this reason, the Court denied SEC its claims.
The Court’s ruling sets a clear precedent. Interest groups that initiate collective proceedings under the WAMCA outside the three-month period and without prior court approval to extend such term suffer the risk of their claims being denied for procedural reasons. This ruling is also relevant to other pending WAMCA proceedings in which similar issues play a role.