Recent Dutch case law has sent a clear signal to the market. Collective securities actions under the WAMCA regime face a high procedural threshold before courts will consider the merits. The Airbus litigation in first instance in August 2023 exposed this reality. The Stellantis decision of July 2025 confirmed that this was not an isolated outcome but part of a broader judicial approach. Following the Airbus appeal judgment of December 2025, that signal has only become clearer.
Taken together, these cases call for a more sober assessment of the viability of opt-out securities actions in the Netherlands.
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A consistent judicial message
Across the Airbus and Stellantis opt-out proceedings under the WAMCA, Dutch courts have taken a strict gatekeeping role at the admissibility stage.
In Airbus, the Hague District Court in August 2023 found the WAMCA foundations inadmissible due to shortcomings in representativeness, governance and independence.
In Stellantis, in July 2025, the court did not reach the merits at all, dismissing the case entirely at the admissibility stage because the foundation failed to meet the required standards.
This approach was subsequently confirmed on appeal in Airbus in December 2025.
Dutch courts are clearly enforcing the WAMCA filters as intended, ensuring that only well-prepared and genuinely representative claims proceed. At the same time, this strict gatekeeping raises the question whether the admissibility threshold is now set so high that it may also exclude otherwise meritorious claims.
The three pressure points: where the cases failed
Looking across both cases, three recurring weaknesses stand out.
1. Representativeness remains a hard threshold
Courts expect claim foundations to demonstrate that they represent a meaningful portion of the affected investor base.
In Airbus, one foundation failed because its support base was negligible. In Stellantis, the court was not convinced by vague and unverified claims about investor participation.
The lesson is clear. Numbers matter, but credible evidence matters more. A foundation must show who it represents, what losses are involved, and how this compares to the broader investor base. Anything less will not pass.
However, it must be said that in practice, building such a representative base at an early stage can be both challenging and costly, particularly in cross-border cases where investor outreach takes time.
2. Governance and independence are under scrutiny
Dutch courts are highly alert to the risk that claim foundations are effectively controlled by funders or law firms.
The Airbus judgment made this explicit. A structure perceived as an “empty shell” driven by commercial actors will not be accepted. Stellantis followed the same line, pointing to limited transparency, weak internal organisation and significant funder influence.
The standard, therefore, goes beyond formal compliance. Courts assess whether a foundation genuinely operates in the interests of the investors it represents.
At the same time, a careful balance will need to be maintained between safeguarding independence and ensuring robust governance on the one hand, and allowing for practical and workable funding structures on the other.
3. Preparation and credibility cannot be fixed later
A notable aspect of the Stellantis decision was the court’s scepticism toward last-minute adjustments. Measures introduced shortly before the hearing were viewed as reactive rather than structural.
A similar message emerges from Airbus. Courts expect claim foundations to meet the required standards from the outset.
This leaves little room for a “file first, fix later” approach. While this is understandable, it may reduce flexibility in complex cross-border cases, particularly where parallel or competing actions are being pursued in other jurisdictions.
The broader implication: a structural challenge for opt-out models
These decisions raise a more fundamental question. Is the current WAMCA framework well-suited for complex securities litigation on an opt-out basis?
In theory, WAMCA offers powerful tools. In practice, the admissibility stage has become a significant hurdle. This raises the broader question of whether procedural admissibility is starting to outweigh substantive access to justice.
For institutional investors, this creates real uncertainty. Even a potentially strong case can fail before reaching the merits if the procedural setup is not sufficiently robust.
As a result, opt-in structures may remain more attractive in many situations. They offer clearer control over participation, stronger alignment of interests and greater predictability at the admissibility stage.
What would a successful WAMCA securities case require?
If opt-out securities actions are to succeed under WAMCA, the bar is clearly high. A successful case will likely require:
- A solid and verifiable investor base representing a meaningful share of total losses
- A genuinely independent governance structure with real decision-making autonomy
- Full transparency on funding arrangements and internal organisation
- Demonstrable expertise and operational capacity within the foundation itself
- A case prepared in depth before filing, rather than developed during the proceedings
Anything less risks early dismissal.
Final reflection
Airbus at first instance served as the warning shot. Stellantis confirmed the direction with the Airbus appeal in December 2025 firmly consolidating that approach.
Dutch courts are not closing the door to collective securities actions, but they are making clear that only well-structured cases with sufficient support will be allowed through. While this approach is justified in preventing abuse and unsupported claims, it remains important to strike the right balance so that access to justice is not unduly restricted.
For investors, the implication is practical rather than theoretical. The choice of litigation structure is no longer just about legal theory or jurisdiction. It is about execution, credibility and risk management from day one.
Deminor continues to closely monitor developments in collective securities actions in the Netherlands, across Europe and APAC.
If you would like to discuss a specific matter or these evolving trends, please feel free to reach out to Joeri Klein at joeri.klein@deminor.com
