Progress of the lawsuit against Daimler
The Goal
The foundation’s ultimate goal is to find a reasonable and fair solution in consultation with Daimler c.s. for all injured European owners affected by the diesel scandal. A solution in which Daimler c.s. take their responsibility and in which the injured car owners can continue to use their cars at no cost and without any (future) risk.
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One possible result the foundation may achieve is to reach a settlement with Daimler c.s. This may be an out-of-court settlement, but also a so-called WCAM settlement. In the case of a WCAM settlement, the respondent parties and foundation will ask the Amsterdam Court of Appeal to declare the agreements they have made universally binding. After such declaration, the settlement will apply to all affected car owners. Only car owners who indicate on time that they do not want to participate in the settlement are excluded from the collective scheme. A similar settlement can be concluded and declared universally binding in the proceedings before the Amsterdam court under the WAMCA (see below).
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The proceedings before the Amsterdam Court against Daimler c.s. are instituted on the basis of the Dutch Act on redress of mass damages in collective action (WAMCA). The WAMCA came into force on 1 January 2020. Under the WAMCA, it is possible to directly claim monetary damages in collective redress proceedings.
The foundation has requested the Amsterdam District Court to declare that Dutch car owners are authorized to return the affected vehicles to the Dutch dealers (authorized Volkswagen dealers) and to receive a full refund of the purchase price. For consumers and business drivers who have purchased the affected cars second-hand, the foundation is claiming monetary damages. Same goes for non-Dutch car owners, should the Amsterdam Court decide that also these car owners can join the Dutch proceedings against Daimler (‘opt-in’).
WHERE WE ARE NOW
The proceedings against Daimler and the other defendants have started. Below you can find more information about these proceedings.
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The Court has determined that on Friday 25 March 2022 from 9.30 am to 12.30 pm an oral hearing will take place in the first phase of the proceedings. During the oral hearing, the following topics will be discussed:
(i) the jurisdiction of the Dutch courts;
(ii) the applicability of the WAMCA and/or Article 3:305a (old) Dutch Civil Code; and
(iii) the position of SEC and Bosch under the WAMCA.
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On 21 April 2021, the court adopted the structure for the proceedings. It divided the proceedings into the following three phases.
In the first phase, the court will decide on (i) the jurisdiction of the Dutch court and (ii) the applicability of the new collective action law (the WAMCA) and/or the old collective action law (Section 3:305a (old) Dutch Civil Code. In addition, the court will assess the position of Stichting Emission Claim ('SEC') and Robert Bosch GmbH ('Bosch') as parties to these proceedings.*
In the second phase, the court shall decide on (i) the admissibility of Stichting Car Claim and Stichting Diesel Emission Justice and (ii) the applicable law. In phase 2, the court shall also appoint an exclusive representative. The exclusive representative shall take the lead in the further course of the proceedings.
In the third phase, the court will address the substance of the claims against the defendants.
The next procedural step is that Stichting Car Claim and Diesel Emission Justice Foundation can make a statement by deed about the position of SEC as third party plaintiffs, and Bosch as defendant, in these proceedings. Stichting Car Claim has until 19 May to do so.
* SEC instituted its own collective action against the defendants without the court's prior permission, outside the applicable summons period. SEC - as the sole plaintiff - also filed claims against Bosch as a defendant. SEC's and Bosch's participation in these proceedings is therefore at issue."
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On 9 February 2021, Daimler requested the Amsterdam Court to organize a pre-trial review before the substance of the case is dealt with.
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On 3 March 2021, the Amsterdam Court will determine how the proceedings will continue.
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In December 2020, the foundation summoned Daimler c.s. to appear before the Court of Amsterdam on 3 February 2021.
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On 21 August 2020, the foundation requested the Amsterdam District Court to extend the three-month term in which the foundation can institute its own collective claims against Daimler c.s.
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On 30 September 2020, the Amsterdam District Court extended the term for issuing a summons with two months, up to and including 31 December 2020. You can read the decision here (in Dutch).
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On 31 July 2020, Diesel Emissions Justice Foundation serves a writ of summons on Daimler, its Dutch importers (Mercedes-Benz Vans Nederland and Mercedes-Benz Cars Nederland) and the Dutch dealers.
The preparation
Starting a lawsuit requires extensive preparation. This preparation had a number of important moments, which you will find below.
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In the run-up to the proceedings before the Court of Amsterdam, the foundation corresponded with the respondent parties. The foundation sent a letter to Daimler on 20 July 2020. In this letter, the foundation described the developments in the Daimler emissions scandal and explained why the foundation believes that Daimler should compensate the injured car owners. On 15 December 2020, the foundation sent similar messages to Daimler’s official Dutch importers and the car dealers.
In its correspondence, the foundation has invited Daimler c.s. to enter into conversation in order to find a real solution for all injured car owners together. Unfortunately, Daimler c.s. did not accept the invitations from the foundation. Therefore, the foundation continued to institute proceedings before the Court of Amsterdam.
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On 3 July 2020, the foundation changed its name to Stichting Car Claim and expanded its objects clause. Under its articles of association, the foundation acts for all drivers who have been injured by car manufacturers involved in the diesel emissions scandal.
Here you can consult the articles of association of the foundation.
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Jan Zielonka has been appointed as a member of the Supervisory Board of the foundation. The Supervisory Board consists of Marten Oosting, Hans de Savornin Lohman and Jan Zielonka. Jan Zielonka is a Professor of European Politics at the Universities of Oxford and Venice. You can read more about Jan Zielonka’s background and his reasons for joining the foundation under his profile description.
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Hans de Savornin Lohman has been appointed as a member of the Supervisory Board of the foundation. The Supervisory Board consists of Hans de Savornin Lohman and Marten Oosting. With more than 25 years of litigation experience, Hans will follow the main developments in the trial and support the team of lawyers however possible. You can read more about Hans de Savornin Lohman's background and his reasons for joining the foundation under his profile description.
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The foundation is very pleased that Marten Oosting has become a member of the foundation as chairman of the Supervisory Board. You can read more about the former National Ombudsman and his reasons for joining the foundation in his profile description.
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Guido van Woerkom has become the director of the foundation. You can read more about Guido's background and his reasons for joining the foundation in his profile description.
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The foundation has appointed Fausto Pocar as chairman of the foundation. Fausto Pocar has been acting in the interests of others for years and has a wealth of experience. Among other positions, Fausto Pocar is a judge at the International Criminal Court in The Hague and a member/chairman of the Yugoslavia Tribunal.
You can read more about Fausto Pocar's background and his reasons for joining the foundation in his profile description, which you can find here.
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The foundation has appointed the law firm AKD as the foundation's lawyer. AKD specializes in collective actions and will provide legal support to the foundation.
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The foundation has appointed Arie van der Steen as treasurer of the foundation. Arie van der Steen has decades of experience as an accountant at various companies. The foundation also welcomes his management experience.
You can read more about Arie van der Steen's background and his reasons for joining the foundation in his profile description, which you can find here.
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On 1 October 2015, the Volkswagen Car Claim foundation was established. You can read the statutes here.