Five years on: the evaluation of the WAMCA and the future of Dutch collective action litigation – call for more efficiency and clarity

Five years on: the evaluation of the WAMCA and the future of Dutch collective action litigation – call for more efficiency and clarity

Introduction

Yesterday, the final part of the evaluation of the Dutch statutory collective action regime, also known as the ‘WAMCA’, was published. Prepared by a group of leading academics, the evaluation is expected to inform policy debate and guide potential reforms in collective actions law in the Netherlands.

The WAMCA, effective as of 1 January 2020, introduced a collective litigation mechanism enabling foundations and associations to pursue both declaratory and monetary claims on behalf of a group of affected parties, primarily on an opt-out basis for group members domiciled in the Netherlands. 

This evaluation marks the first in-depth statutory and empirical assessment of the WAMCA five years after its entry into force, at a time when the Netherlands has emerged as a leading European forum for complex and cross-border class actions.

In this blog post, we discuss the background of the evaluation, its key findings and recommendations, and its potential implications for the future on collective action litigation in the Netherlands.

Background WAMCA evaluation

The Dutch parliament mandated an evaluation of the regime’s performance by means of a two-part study:

1. A comparative legal analysis of the representativity requirement, assessing Dutch law against six European jurisdictions and considering its alignment with the ECHR and Aarhus Convention (June 2025); and
2. A comprehensive assessment of the WAMCA, examining case law, quantitative trends, and professional experiences to determine if the WAMCA’s goals are being met (November 2025).

In the first part, the researchers concluded that the WAMCA's representativity requirement is insufficiently defined. The representativity requirement is the legal requirement that a claimant organisation is sufficiently representative of the group whose interests it seeks to protect. The representativity requirement has had an inconsistent judicial interpretation, which has caused legal uncertainty. The researchers further concluded that this requirement does not conflict with the ECHR but it may clash with Article 9 of the Aarhus Convention on environmental justice. The representativity requirement is less flexible than the competency-based criteria used in other European jurisdictions, indicating a need for clarification or adjustment in the Dutch framework to ensure predictable and equitable access to collective actions.

For more information on the first part of the evaluation, please find the full report, summary and other related documents here (Dutch and English).

Key findings and recommendations of the second part of the evaluation

Below is a selection of important findings from the second part of the WAMCA evaluation.

• General appreciation for the WAMCA
  • The researchers find that practitioners view the WAMCA as a positive development, particularly because it enables collective claims for damages, which was not possible under the previous regime. 
• No final damages settlements yet
  • The report finds that no final judgments going into collective damages settlements have been rendered thus far due to the lengthy preliminary phase.   
• Lengthy proceedings and lack of flexibility
  • According to the researchers the statutory procedural phase – which primarily revolves around admissibility – is considered lengthy and lacks flexibility for courts.
  • Certain mandatory procedural steps within the WAMCA structure that are meant to facilitate coordination sometimes hinder effectiveness and efficiency of the proceedings.        
• Admissibility requirements: governance, funding and representativity
  • The researchers find that practitioners are positive about the applicable admissibility requirements that are meant to protect represented parties. However, the perception exists that these (strict) requirements lack clarity. Two specific examples:
    • There is a lack of clarity on how courts should assess whether a claimant has sufficient control over and financial means for the collective action, especially when third-party litigation funding is involved.
    • The interpretation of the representativity requirement is unclear – specifically, when courts should apply a quantitative (number of registrations from represented parties) or a qualitative test (reputation and track record) and what counts as “sufficiently representative,” especially for public interest actions. For ideological claims a quantitative test does not work very well, and the researchers note that practitioners have expressed preference for a qualitative test in such cases. There is some debate on whether legislative intervention is needed or if further case law will suffice.
• Lack of tailored appeals/procedural rules
  • The WAMCA does not contain specific rules on appeals and cassation. The legislator chose to rely on the existing framework in the Dutch Procedural Code in WAMCA proceedings.
  • The researchers found that certain aspects of the interplay between WAMCA cases and appeals have crystallised in practice, whereas other aspects remain unclear.  
• Protection of represented parties – no abuses identified
  • The researchers note that they did not find examples of claims that were driven by purely commercial interests at the expense of group members. The researchers mention that the admissibility requirements of the WAMCA seem to be working as intended by the legislator. However, there is uncertainty about the portion of the compensation that the funder may receive for its investment in the proceedings, and the interpretation of criterion that the claimant must have sufficient control over the proceedings (in the light of the funder’s involvement).

Below is a summary of selected recommendations for the legislator by the researchers:

• Efficiency of the proceedings and additional flexibility for courts
  • The researchers make specific recommendations that have to do with the powers of judges to deviate from the prescribed procedural structure of the WAMCA.
  • For example, the recommendation is made to let judges skip or move the mandatory settlement attempt to a later stage where this is more productive, avoiding unnecessary procedural steps.
• Admissibility requirements: changes and clarification
  • The researchers advise to introduce a qualitative representativity test, in any event for public interest cases.
  • The researchers are calling for further clarity on the application of the representativity requirement and the requirement that the claimant must have sufficient control over the proceedings.
  • The researchers suggest developing guidelines or a model litigation funding agreement, which would require a less thorough assessment bycourts.
• Implement certification/two-track system
  • The researchers advise the consideration of mechanism to accelerate the preliminary phase.
  • They mention the introduction of a two-track system. The first track would consist of a certification system for ‘repeat players’, whereby certified claimants would enjoy a lighter admissibility assessment. The second track would be meant for claimants without a track record, whereby the court would review the standing and admissibility of the claimant in full.    
• Legal clarification and further study for appeals, joinder, intervention
  • The researchers recommend that the legislator – possibly based on further research – clarifies several issues regarding appeals and cassation, such as the reassessment of admissibility, the appointment of exclusive representatives, the role of non-exclusive co-claimants, and the risk of fragmented proceedings. They also highlight the need for clear rules on joinder and intervention in appeal.
• Amicus curiae in collective damage procedures
  • The researchers advise the legislator to consider the introduction of amicus curiae – i.e., commentary by third parties to contribute to the development of the law – in collective actions.

For more information on the second part of the evaluation, please find the full report, summary and other related documents here (Dutch and English).

Future impact on Dutch collective action landscape

The recommendations amount to a call on the government to amend the WAMCA for the purposes of additional efficiency and clarity. As a result, the evaluation may lead to statutory amendments to the WAMCA, thereby shaping the next stage in the development of the Netherlands as a primary collective action jurisdiction. 

Given the current caretaker status of the Dutch government, a substantive governmental assessment of the evaluation and its recommendations will be a matter for the next government. Therefore, it remains to be seen how the evaluation will be implemented in practice.