District Court East-Brabant 27 January 2022, ECLI:NL:RBOBR:2022:247
The Court notes that two class action lawsuits regarding the Diesel scandal have been filed with the Amsterdam Court. Both proceedings are directed against various car manufacturers, including Volkswagen AG, and against several car dealers. In the first collective action procedure (instituted by the Dutch Foundation Stichting Car Claim) a final judgement was rendered on 14 July 2021. All parties involved in these proceedings have appealed this final judgment. The second class action lawsuit was filed with the Amsterdam Court by the Dutch foundation Stichting Diesel Emissions Justice in a writ of summons dated 13 March 2020 (the 'second collective action procedure'). In these proceedings, another hearing will take place to discuss the court's jurisdiction to hear the claims and the applicability of the WAMCA. VGDES has instituted various proceedings on behalf of individual consumers before various courts, including the present proceedings.
First, the Court considers itself competent to handle the dispute. The question of whether the case should be referred or stayed must also be answered in accordance with Dutch law, since this concerns a procedural question according to the Court.
The Court concludes that the question to be answered is whether there is a basis for referral to the second collective action procedure. The answer is negative. The Court considers that the proceedings before the Court an the second collective action procedure do not regard proceedings between the same parties on the same issue. The Court finds that VGDES is neither formally nor substantively a party to the second collective action procedure. It is also not clear yet whether the second collective action procedure should be qualified as a WAMCA procedure and whether VGDES belongs to the narrowly defined group within the meaning of the WAMCA. There is no question of the same parties or of the same litigation. The so-called close connection required for referral is also lacking. Finally, the Court saw 'even less reason' for referral because a referral would result in joined cases being heard after referral. Joinder is not possible because this is a collective action procedure with its own rules of procedure.
The Court does, however, stay the proceedings until there is clarity on whether the second collective action procedure should be qualified as a WAMCA procedure and what this means for the position of VGDES. In any case, as long as there is no clarity in this respect, the Court sees a reason to stay the proceedings. An opt-out within the meaning of Article 1018f (1) Dutch Code of Civil Procedure ('DCCP') cannot be granted in advance. Nor can an application for suspension of the current proceedings within the meaning of Article 1018m of the DCCP be entertained at this stage.
The court does not allow an interim appeal.