The Netherlands

On behalf of the team

The judgment of 3 March 2021 in the case of Stichting Diesel Emissions Justice Volkswagen has shown that the possibility of joinder under the WAMCA regime is likely ruled out.

The recently introduced WAMCA regime also introduced Title 14A (Articles 1018b through 1018m) of the Dutch Code of Civil Procedure. This title pertains to the procedural aspects of the 305a procedure. It therefore applies to proceedings that were instituted on or after 1 January 2020 and in addition relate to an event that occurred on or after 15 November 2016. Article 217 of the Dutch Code of Civil Procedure provides that every party having an interest in proceedings pending between other parties may claim to join those proceedings or to intervene in the proceedings.

Car Claim argued that Title 114A does not exclude the application of Article 217. The District Court finds that this assertion in itself is correct, but that there is nevertheless no room for joinder under the WAMCA regime. In this respect, it finds that, pursuant to Article 1018d, Car Claim could have lodged a collective claim for the same event within three months after the issue of the summons by SDEJ. In that case, the District Court would have designated one of them as the exclusive representative. The non-designated claimant could have stayed as a party and the District Court would have decided whether this claimant would also have been allowed to perform procedural acts. The WAMCA – the District Court argues – therefore has a closed system for claimants in two respects. This design of this system was well thought through by the legislature. As a result, Car Claim cannot be assigned a place as a claimant in the proceedings in circumvention of the admissibility requirements and the WAMCA designation procedure. That would contravene the intention of the legislature.

The fact that it is not certain that a final judgment will have been rendered in the Car Claim proceedings when the possibility of opt-out is offered in the SDEJ proceedings does not, in the District Court’s opinion, constitute a reason to decide otherwise, and neither does the circumstance that Car Claim’s claim in the Car Claim proceedings has been declared admissible, or that Car Claim’s good intentions are evident.

As the applicable law for the underlying action has not yet been determined, the assessment was also made according to the law applicable until 1 January. For Car Claim to be able to join the proceedings under this law, it is necessary for the SDEJ proceedings to turn out unfavourably to SDEJ and for that to be disadvantageous to Car Claim. According to the District Court, it is not sufficient that there is a risk of conflicting decisions.

Finally, the District Court found that the interests represented by Car Claim and SDEJ overlap. When a judgment is rendered in respect of SDEJ, part of the group represented by Car Claim will also be bound by it. The District Court held that Car Claim therefore wishes to stay this judgment with the intention of preventing any substantive ruling from being given in the main action for the time being. SDEJ, however, did want a substantive assessment. Allowing joinder in this case would therefore be at odds with the essence of joinder; the joining party must support the position of the party it joins and not claim something else.

For all the aforementioned reasons, the District Court therefore rejected Car Claim’s claim for joinder.