The Supreme Court clarifies certain aspects of admissibility under the WAMCA
Introduction
The Privacy Collective (TPC) alleges that Salesforce and Oracle are infringing the privacy of millions of internet users. It is claimed that they collect personal data through cookies, link that data to offline sources, and in doing so compile detailed profiles which are subsequently sold to advertisers.
TPC claims damages a total of EUR 10 billion from Oracle and Salesforce on the grounds of tort and pursuant to Article 82 GDPR.
The proceedings are conducted under the Act on Resolution of Mass Damages in Collective Actions (WAMCA), Article 3:305a of the Dutch Civil Code. The WAMCA provides for a two-phase structure: admissibility is determined first, after which the merits are examined.
At first instance, the Amsterdam District Court declared TPC inadmissible as the designated representative, finding, among other things, that it did not satisfy the representativeness requirement. On appeal, the Amsterdam Court of Appeal held that TPC was admissible after all.
Oracle and Salesforce brought an interim appeal to the Supreme Court. The Supreme Court delivered its judgment on 17 July 2026, in which it considered the following with regard to admissibility.
Ex nunc assessment of admissibility on appeal
The Supreme Court held, first of all, that the admissibility of the interest organization must be assessed ex nunc on appeal: by reference to the circumstances as they exist at the time of the appellate court's decision. This is consistent with the general principle governing appellate proceedings, leading to a fresh examination and determination of the case.
Representativeness requirement
The WAMCA further requires, as a condition of admissibility, that an exclusive representative is sufficiently representative, having regard to its constituency and the scope of the claims represented. The central question, according to the Supreme Court, is whether the interest organization enjoys the support of a sufficiently large proportion of the total group of persons on whose behalf it purports to act. The Supreme Court notes that what constitutes a "sufficiently large" proportion depends on the circumstances of the case; the WAMCA prescribes no fixed percentages or numerical thresholds.
The bar is set higher than the mere existence of a constituency. It is not sufficient that a non-negligible number of persons endorse the action; the court must assess whether the collective claim enjoys the support of a sufficiently large proportion of the total represented group. The Supreme Court further held that support from other interest organizations may be taken into account in that assessment. Anonymous likes on TPC's website, however, are insufficient: it must be possible to establish that those who have liked actually belong to the represented group.
Referral back
As a general rule on appeal, the appellate court may not, following the setting aside of a final decision at first instance, refer the case back to the court of first instance, unless that court failed to reach the merits solely on procedural grounds. The Supreme Court now holds that this exception also applies where the Court of Appeal sets aside a judgment in which the court of first instance declared the interest organisation inadmissible. In such a case, the Court of Appeal may refer the case back to the court of first instance. This applies equally to proceedings following cassation and referral.
This is consistent with the two-phase structure of the WAMCA: admissibility is established first, and only once that threshold has been satisfied does the court proceed to the merits.
The Supreme Court further observes that it would be undesirable to depart from this approach. Failure to do so could give rise to a situation in which multiple collective proceedings concerning the same subject matter are litigated on the merits simultaneously — for example, where the court of first instance declares an interest organisation admissible and proceeds to examine the merits, while the Court of Appeal subsequently holds that the same organisation was in fact inadmissible, after which a different interest organisation pursues the merits before the Court of Appeal. This would risk conflicting judgments, which is precisely the outcome the legislature sought to prevent by enacting the WAMCA.
Conclusion
With this judgment, the Supreme Court has provided clarification on several points in the admissibility phase of WAMCA proceedings. However, the question what constitutes a sufficiently large part of the represented group remains unanswered.
It is to be expected that future case law will further illuminate the circumstances relevant to the assessment of an interest organization's admissibility.
The full judgment can be found here.