On 17 July 2026, the Supreme Court handed down its judgment in the collective action brought by Stichting The Privacy Collective (“TPC”) against Oracle and Salesforce. The ruling is of significance to any party facing a collective action under the Mass Claims Settlement Act (“WAMCA”), and in particular regarding the question of when an interest group is sufficiently representative to claim compensation on behalf of a large group of affected parties.
Background
The proceedings concern the misuse of personal data belonging to ten million Dutch internet users. Among other things, TPC sought declarations of law and joint and several damages from Oracle and Salesforce totalling 5 billion euros – or 500 euros per person – on the grounds of alleged privacy breaches involving the placement of cookies and the creation of user profiles for targeted advertising.
The Amsterdam District Court declared TPC’s claim inadmissible on the grounds that the representativeness requirement under Article 3:305a(2) of the Dutch Civil Code had not been met. The Amsterdam Court of Appeal quashed that judgment, declared TPC’s claim admissible after all, and referred the case back to the District Court. The parties to the proceedings lodged an appeal in cassation against this decision with the Supreme Court.
The Supreme Court’s ruling
The admissibility of an interest group under the WAMCA is assessed ex nunc
The Supreme Court confirms that the appeal court assesses the admissibility of an interest group in WAMCA proceedings on the basis of the situation at the time of its decision, and not at the time of service of the summons. This is in line with the general principle that an appeal serves to have the case re-examined in the light of the current state of affairs. Neither the text nor the legislative history of the WAMCA provides any grounds for deviating from this principle.
A ‘not negligible’ membership base is not sufficient
The crux of the judgment concerns the interpretation of the representativeness requirement under Article 3:305a(2) of the Dutch Civil Code. The Court of Appeal had ruled that it is sufficient for ‘a not insignificant number of persons’ to support the action. The Supreme Court rejects that standard: the court must assess whether the collective claim has the support of ‘a sufficiently large proportion of the total group for whom the interest group represents’. The WAMCA does not specify a numerical criterion, but indicators include, amongst other things, the number of registered members or the number of people who have actively registered, and whether the registered individuals form a balanced representation of the total group.
Support from other civil society organisations may, however, be taken into account when assessing whether the representativeness requirement is met. Furthermore, the Court of Appeal had failed to provide sufficient reasoning as to why anonymous ‘likes’ on TPC’s website demonstrated that the support actually came from affected individuals, whilst Oracle and Salesforce had contested this with sound reasoning.
The assessment under Articles 80 and 82 of the GDPR may be deferred until the substantive assessment
The Supreme Court ruled that the GDPR does not require the mandate requirement under Article 80(1) of the GDPR, in conjunction with Article 82 of the GDPR, to be assessed at the admissibility stage of WAMCA proceedings. The Court of Appeal was entitled to defer this issue, as well as the other aspects of Article 80 of the GDPR, until the substantive stage of the proceedings. There is no basis for referring questions for a preliminary ruling to the Court of Justice of the EU on this point.
Exception to the prohibition on remittal to the lower court
Finally, the Supreme Court accepts an exception to the main rule that, following the setting aside of a final judgment, the appeal court may not refer the case back to the court of first instance. Under the special, two-stage system of the WAMCA, where the Court of Appeal sets aside a wrongly issued declaration of inadmissibility, it may refer the case back to the District Court, because the court of first instance did not proceed to a substantive hearing on purely procedural grounds.
Conclusion
As the appeals concerning the representativeness test are upheld, the Supreme Court sets aside the judgments of the Amsterdam Court of Appeal of 18 June 2024 and 24 September 2024 in both cases and refers the proceedings to the Court of Appeal in The Hague for further consideration and decision.
Implications for practice
This judgment raises the threshold for collective actions for damages. Interest groups can no longer simply demonstrate ‘some’ support amongst their members; they will have to substantiate, with concrete evidence and figures, that a substantial proportion of the group they represent actually supports the action — particularly when damages are claimed on behalf of a very large and diffuse group. Anonymous expressions of support (such as ‘likes’) are not sufficient without further evidence that they originate from the alleged victims themselves. That said, the Supreme Court does confirm that it is permissible to take into account the support of other interest groups when assessing whether the representativeness requirement has been met.
For defendants in WAMCA proceedings, the ruling provides a concrete basis for (further) challenging the representativeness of claimant interest groups, particularly in cases involving a large and generic support base and substantial sums claimed. At the same time, the Supreme Court confirms that GDPR-specific admissibility issues do not necessarily have to be resolved at the admissibility stage, which may improve procedural efficiency in complex privacy-related mass claims. Finally, the Supreme Court now explicitly offers claimants the opportunity to remedy any shortcomings regarding representativeness during the appeal proceedings: the assessment of this requirement must, in fact, take place ex nunc.
Do you have any questions about the judgment discussed above or collective actions? Please contact Arnout Koeman, Lennart Hoeksema or one of our other WAMCA specialists.
