Dutch Mass Litigation from a Legal and Economic Perspective and its Relevance for France

Abstract

In this Paper, we discuss the two options for the resolution of mass conflicts which exist in the Netherlands from an economic perspective and argue that such an analysis yields valuable insights for the current debate in France regarding the 'action de groupe'. The first Dutch option consists of collective litigation, where the claim however is not allowed to be filed in order to obtain compensatory damages. The second option is the Collective Settlement of Mass Claims (‘Wet Collectieve Afhandeling Massaschade’, abbreviated to WCAM). This procedure enables the alleged wrongdoer(s) and representative associations or foundations representing the victims who have reached an out of court settlement to request the Court to declare this settlement binding for all potential claimants on an opt-out basis. We believe that an understanding of the two Dutch procedures and an economic evaluation thereof can provide valuable insights for the discussion regarding the implementation of a group action in France.In this Paper we first discuss mass litigation from an economic perspective, followed by an overview of the collective action and the WCAM and point out their respective strengths and weaknesses. Subsequently we make a few final observations regarding the implementation of a group action in France and its extension to environmental and health issues. Some recommendations and advice drawn from the Dutch experience will be provided.