The Netherlands

On behalf of the team

Because it was expected that the proceedings instituted by the foundation Diesel Emissions Justice (the Foundation) against Volkswagen would become extensive, the District Court proposed to divide the proceedings into procedural phases. The District Court proposed to discuss the jurisdiction of the Dutch court and the applicability of the WAMCA and/or Article 3:305a (old) DCC in the first phase. The Foundation asserted that it was more practical and clearer to discuss the Collective Action questions in the first phase and the PIL questions in the second phase. This was because, as a result of Article 1018c(5) DCCP and the structure of the WAMCA, it was desirable that, after the opportunity to opt in or opt out had been offered, it would become clear on whose behalf the representative was acting, as this could affect jurisdiction.

The District Court found that it also had to decide on its jurisdiction with regard to the foreign defendants. Seeing that further decisions could only be taken if the District Court had jurisdiction vis-à-vis a defendant, this subject would have to be dealt with in the first phase of the proceedings, if necessary ex officio.  Due process further required that the group of interested parties whose interests the Foundation claimed to represent in its summons was taken as point of departure. An opportunity to opt-in offered at a later point in the proceedings and the subsequent use thereof thus could not lead to jurisdiction arising vis-à-vis certain defendants where it was previously lacking, according to the District Court. The District Court therefore rejected the Foundation’s argument that jurisdiction could only be assessed after the opportunity to opt in or opt out had been offered. Briefly put, Article 1018c(5) DCCP provides that substantive assessment of the class action will only take place after a number of preliminary questions have been answered. According to the District Court, it could not be deduced from this article that the assessment of the preliminary questions must also precede the assessment of jurisdiction.