In its interim judgment of 1 February 2023, the District Court of Amsterdam (Court) delineated the temporal scope of the WAMCA^[1] versus the older WCAM^[2] regime by holding that a series of violations that constitute a continuous conduct fall within the scope of the WAMCA. In addition, the Court ordered disclosure of the funding agreement to the Court but not to the defendant.

The case concerns claims in the amount of EUR 400 million plus interest by the foundation Nuon-Claim (Foundation) against Vattenfall^[3] (previously Nuon) on behalf of Vattenfall customers who allegedly were charged and paid excessive fees. The parties disagree as to whether the claims fall within the temporal scope of the new WAMCA or the old WCAM regime. According to Dutch legislation, the WAMCA regime is applicable to claims that are (i) filed after 1 January 2020 and (ii) based on events that occurred on or after 15 November 2016.^[4] The contracts, the implementation of which led to the allegedly excessive fees, were entered into before 15 November 2016. The charging and payment occurred in part before 15 November 2016 and in part after that date. The Court held that the alleged overcharges were the result of Vattenfall’s decision or policy to charge allegedly excessive fees, which lead to an unlawful situation. Vattenfall is accused of maintaining that unlawful situation or failing to remedy it, which the Court considers to be one single continuous unlawful act (voortdurende onrechtmatige daad). As a result, the Court held that the WAMCA regime applies to all claims of customers who were charged and who paid excessive fees on or after 15 November 2016, including claims of those customers relating to payments made before that date. The claims of customers who were charged and who paid excessive fees only before 15 November 2016 fall within the scope of the old WCAM regime.

In addition, the interim decision addresses the funding arrangement which the Foundation entered into with Bench Walk Guernsey PCC LTD (Funder). The Court ordered the disclosure of the funding agreement to the Court but not to Vattenfall. The Court bases its power to order disclosure on the requirement that the Foundation have sufficient control over the legal action^[5] and the general requirement that the represented claimholder’s interests be safeguarded. The funding arrangement stipulates that 75% of the case proceeds should go to the claimholders. The Funder’s remuneration amounts to 8-25% of the case proceeds, depending on the number of represented claimholders, or a minimum of three times the actual costs incurred. The Court ordered the Foundation to explain what happens to the remainder if less than 25% of the case proceeds go to the Funder and to elaborate on the cost budget and the relationship between the percentage-based and multiple-based pricing elements.

All in all, the interim judgment provides guidance on the interplay between the new WAMCA and the old WCAM, and it is one of the few decisions in which there is a clear emphasis on the funding agreement. It will be interesting to see how the Court assesses the funding agreement once it had the chance to see it. The decision in any event confirms that Courts are willing to scrutinize funding arrangements and, at the same time, provides some comfort to funders and claim foundations that the funding agreement will be reviewed by courts in camera, and not end up in the hands of defendants.

Anton Burri^[6] and Adrianus van Heusden^[7]

[1] Act on Settlement of Mass Damages in Collective Action.

[2] Act on Collective Settlement of Mass Claims.

[3] Vattenfall N.V., Vattenfall Sales Nederland N.V., Vattenfall Energy Trading Netherlands N.V.

[4] According to Article 6:119a paragraph 2 Transitional Act New Civil Code.

[5] Article 3:305a(2)(c) Dutch Civil Code.

[6] Faculty of Law, University of Lucerne, Switzerland.

[7] Rotterdam Institute of Law and Economics, Erasmus University Rotterdam, The Netherlands.

Foto Credit: Zarnivop