On 11 March 2022, the highest court in the Netherlands handed down its first ruling on the Resolution of Mass Damage in Collective Actions Act, known as the WAMCA, which came into force in 2020. The Supreme Court confirmed that a request for a preliminary witness hearing in connection with a collective action may be denied if the collective action is unlikely to meet the admissibility criteria under the WAMCA. In addition, the Supreme Court provided guidance on the transitional regime applicable to the WAMCA.

This WAMCA judgment is the first of probably many to come. Since the entry into force of the WAMCA in 2020, the Netherlands has seen a sharp increase in collective actions, and it has become a hot spot for mass claims in Europe.

Background

In anticipation of a collective action against Warner Music, claim fund Stichting Music#MeToo requested a preliminary witness hearing in 2020. A court of appeal denied this request ruling that the claim fund had no valid interest in such a hearing as it clearly did not meet the admissibility criteria under article 3:305a of the Dutch Civil Code which apply since the WAMCA's entry into force on 1 January 2020. The claim fund appealed to the Supreme Court, arguing that as it had filed the request in December 2019, the court of appeal should have applied the pre-WAMCA admissibility criteria under article 3:305a. The claim fund also argued that the court of appeal should have applied the admissibility criteria only summarily or marginally.

Supreme Court ruling

The Supreme Court rejected the appeal, and affirmed that a court can deny a request for a preliminary witness hearing if the request is filed in connection with a collective action, and it is not sufficiently likely that the collective action, when filed, will meet the criteria of article 3:305a DCC.

According to the Supreme Court, the WAMCA's admissibility criteria applied even though the request for a preliminary witness hearing was filed before it entered into force. Referring to the transitional law that applies to the WAMCA, the Supreme Court ruled that the WAMCA applied because: (1) the collective action itself was not filed before 1 January 2020, and (2) there is no indication that the collective claim (exclusively) related to events that took place before 15 November 2016.