On 23 February 2022, the Amsterdam District Court ruled that a foundation as claimant cannot act simultaneously as mandatary and as representative within the meaning of Article 3:305a DCC.Amsterdam District Court 23 February 2022, ECLI:NL:RBAMS:2022:753 In this case, Stichting Bouwfonds Claim is seeking a declaratory judgment entailing that Bouwfonds Fund Management B.V. made misleading statements in its advertising brochure and prospectus and that Bouwfonds must compensate these damages for that reason. In this case, the Foundation acts both as a collective representative within the meaning of Article 3:305a DCC and as mandatary. The District Court finds that this means that in its actions as a 305a foundation, the Foundation is both the litigant and the litigant with a legal interest that promotes the collective interest of the collective investors. Since the Foundation is, as mandatary, exclusively the litigant that promotes the individual interests, this leads to a number of problematic relationships.
First, for example, a claim lodged by the Foundation as 305a foundation has interrupting effect with regard to the prescription of the claims of the collective. A claim that it lodges as mandatary only has interrupting effect with regard to the prescription of the claims of the mandators it represents at that time. In addition, the basis for the damages becomes complex in a situation in which the Foundation, in its capacity as 305a foundation, is subject to a statutory prohibition against seeking damages, while it can indeed claim damages in its capacity as mandatary. The District Court therefore concludes that the Foundation cannot, as one and the same claimant, act simultaneously as both mandatary and as 305a foundation. The Foundation’s claim is therefore declared inadmissible.