Onder 4.2 Gerechtshof Den Haag 18 december 2015

Generally, for a claim to be admissible the claimant is required to have his own, direct interest in the claim instituted (cf. art. 3:296, art. 3:302 and art. 3:303 CC). An addition to this is art. 3:305(a) CC, in the sense that a foundation or an association with full legal capacity can institute an action if it is intended to protect similar interests of other persons to the extent that its articles promote such interests. This option to institute a class action has both a substantive and a procedural aspect. As regards the substantive aspect one may consider whether a material entitlement arises in case of violation of the (environmental) interests promoted by the foundation/association, for instance under an action based on an unlawful act. This question, just as the question of validity/allowability, is answered by the law that governs the action (wrongful act), i.e. the lex causae. However, the question wether this right to action can be enforced in a class action as well as by or on behalf of the person entitled -and if so, to what extent and how- must be characterized under Dutch international private law as a procedural matter, to which the lex fori processus -so Dutch law- is applicable. A negative answer to this question of procedural law would mean the case would evade the assessment of the court. This is not the case here, however, as art. 3:305(a) CC provides for the possibility of a class action. Another question is whether Milieudefensie as an interest group has full legal capacity. That this last question should be answered in the affirmative under the applicable law of the country in which the legal person was incorporated is in not in dispute.

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