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Participation Terms and Conditions – Consumer Justice Foundation

Class Action Against Energy Suppliers

This document sets out the terms and conditions that apply if you, as a participant (“Participant”), take part in the class action brought by the Consumer Justice Foundation1 (“Consumer Justice”) against the largest energy suppliers in the Netherlands. The class action concerns unfair price changes in variable energy contracts (gas and/or electricity) with Dutch consumers and small businesses (the “Class Action”).

The class action brought by Consumer Justice is directed against Budget Thuis, Eneco, Energiedirect, ENGIE, Essent, Greenchoice and Greenchoice Zakelijk, Oxxio, Vandebron and Vattenfall, hereinafter also referred to as the “Energy Suppliers”.2 Consumer Justice is deliberately taking action against a large number of Energy Suppliers and is also standing up for small business owners. This way, it represents the interests of as many victims of the unfair and unlawful practices of the Energy Suppliers as possible.

Below is a description of the Class Action, followed by the terms and conditions of participation. By submitting your (electronic) registration, you confirm that you have read and accepted these terms and conditions.

Description of the Class Action: what is the Foundation claiming?

The Class Action challenges the energy suppliers’ use of a price adjustment clause in their terms and conditions, on the basis of which they unjustifiably implement price increases for the supply of gas and/or electricity in the Netherlands at a variable rate. All energy suppliers include a clause in the general terms and conditions of their variable-rate energy contracts that allows them to unilaterally increase tariffs (the “Amendment Clause”). The District Court and the Amsterdam Court of Appeal have ruled that this Amendment Clause is not transparent and/or incomprehensible to consumers. Consequently, the Amendment Clause is unfair and, according to the Consumer Justice Foundation, also unlawful. The energy suppliers are therefore not entitled to unilaterally increase their tariffs. As a result, all price increases based on the Amendment Clause are invalid (i.e. unduly paid), and the excess amount charged must be refunded by your energy supplier.

In the Class Action, the Consumer Justice Foundation acts on behalf of all consumers and small business owners who have had a variable-rate contract with one of the Energy Suppliers since 1 April 2017. The Consumer Justice Foundation claims compensation for the unjustified price increases in the form of a refund of the overpayments or damages, as well as a ban on the continued use of the Amendment Clause. The compensation that the Consumer Justice Foundation claims on behalf of its members is hereinafter referred to as the “Damages”.

The Consumer Justice Foundation is the only advocacy organisation that stands up for both consumers and small businesses. It is also the only advocacy organisation to have launched a collective action against as many major energy suppliers as possible by also taking legal action against ENGIE, Greenchoice Zakelijk, Oxxio and Vandebron. Furthermore, the Consumer Justice Foundation is the only organisation to collectively sue the Energy Suppliers for breach of competition law or on the grounds of (group) tort, and to hold them jointly and severally liable for the Damages. Finally, as mentioned, the Consumer Justice Foundation is also seeking an injunction to stop this practice, thereby ensuring that such Amendment Clauses are not agreed upon and applied collectively again. For the full claims of the Consumer Justice Foundation, please refer to the summary of the summons as published in the central register for collective claims.

Participation in the Class Action

By registering and accepting these Terms and Conditions of Participation, you support the class action brought by the Consumer Justice Foundation and confirm that you are 18 years of age or older and that, between 1 April 2017 and today, you entered into an agreement for the supply of gas and/or electricity in the Netherlands at a variable rate with one or more energy suppliers on the basis of a variable contract.

By registering and taking part, you help the Consumer Justice Foundation in the Class Action against the Energy Suppliers. This enables the Consumer Justice Foundation to demonstrate to the court that this Class Action has broad support. Furthermore, the Consumer Justice Foundation considers it important to keep its supporters informed of and involved in key decisions regarding the Class Action and its intended resolution.

The Class Action is based on the so-called statutory opt-out system. In principle, this system works as follows: if the Consumer Justice Foundation is appointed by the court as the exclusive representative, it will automatically represent all persons within the group of affected parties as determined by the Consumer Justice Foundation and/or the court (the so-called “narrowly defined group”). If, at a later stage, (i) you do not wish to be represented by the Consumer Justice Foundation or (ii) you do not wish to be bound by the judgment or a settlement, you may opt out at that time.

Costs and compensation

Your registration for the Class Action is free of charge, meaning that you do not owe any registration fee. To facilitate the Class Action, the Consumer Justice Foundation works with an external litigation funder who bears the costs on a no-win-no-fee basis. All costs of the Class Action and other activities undertaken to represent your interests are therefore borne by this external litigation funder. Only if the Class Action is successful3 and you, as a Participant, are eligible for Damages, will the Consumer Justice Foundation retain a portion of the Damages you are to receive to cover the costs of the Class Action and the litigation funder’s fee. This is due to the following.

The Consumer Justice Foundation is only able to bring this Class Action because an external funder has committed to covering the costs, including the costs of engaging the lawyers conducting the proceedings and any other advisors or service providers. If no proceeds are generated from the Class Action, for example if the claims are dismissed, the funder will lose their investment, consisting of the costs incurred. In that case, you will not have to pay or contribute anything. The funder is prepared to assume this litigation risk in full on the condition that they receive a percentage of any proceeds realised as remuneration (the “Success Fee”) if the Class Action is successful, whether through a court ruling or a settlement.

The Success Fee amounts to a maximum of 25% of the proceeds or eight times the costs incurred in the Class Action against the Energy Suppliers. This is the portion of any compensation you must forfeit, depending on the total compensation received from the Energy Suppliers. It is structured as follows:

  • (i) If the proceeds are received within 12 months of the date of the summons:
    • 1.5 times the amount financed; and
    • 5% of the amount exceeding €50 million in proceeds.
  • (ii) If the proceeds are received within 12 to 24 months from the date of the summons:
    • 2.75 times the amount financed; and
    • 10% of the amount exceeding €50 million in proceeds.
  • (iii) If the proceeds are received after 24 months from the date of the summons:
    • 3.75 times the amount financed; and
    • 15% of the amount in excess of €50 million of proceeds.

In any event, the Success Fee shall not exceed (i) 25% of the proceeds plus any allocated costs, or (ii) eight times (8x) the amount financed, whichever of these two amounts is higher.

The Consumer Justice Foundation is committed to securing a compensation amount for you and all other Participants in the Class Action that is equal to, or as close as possible to, the actual loss you have suffered.

Other provisions

The Consumer Justice Foundation will conduct the Class Action to the best of its ability and with due care. It gives no guarantees, promises no specific results and excludes all liability upon acceptance of these terms and conditions of participation, except as provided otherwise in these terms or under mandatory law.

The Consumer Justice Foundation may, at its sole discretion, determine how it conducts the Class Action. It has the right to terminate or discontinue the Class Action at any time, even if no results have yet been achieved. In that case, you will of course owe the Consumer Justice Foundation nothing.

The Participant acknowledges that the Consumer Justice Foundation may reject a (proposed) settlement on the grounds that it does not sufficiently serve the Participants’ interests. In that case, the Consumer Justice Foundation may commence further negotiations, (continue) legal proceedings or take other actions as described in its articles of association. However, if the Consumer Justice Foundation succeeds in reaching agreement on a settlement for all or some of the Participants, the Participant shall support any application by the Consumer Justice Foundation to the court for a declaration that a settlement agreement is generally binding, unless the Participant has decided to exercise the right to opt out (see above).

By participating, you also agree that the Consumer Justice Foundation may deduct the Success Fee, as described above, from all amounts received by it or by a third party to be appointed by the court on your behalf. This means that the Consumer Justice Foundation may deduct the Success Fee from the proceeds without first paying it to you as part of those proceeds. If you receive money directly from an Energy Supplier as compensation for excessive energy bills resulting from unjustified price changes, you must report this to the Consumer Justice Foundation. In that case, you must pay the Success Fee to the Consumer Justice Foundation upon first request.

The Consumer Justice Foundation emphasises that, in principle, the courts must approve the manner in which the Class Action is settled. The Consumer Justice Foundation will also comply with any instructions from those courts.

Declarations

You declare that:

  • entering into this participation agreement does not interrupt the limitation period for your claim(s) and that the responsibility for timely interruption of the limitation period under applicable law rests solely with you. The Consumer Justice Foundation may take available suspension measures on your behalf insofar as this is possible collectively. You nevertheless agree that the foregoing does not relieve you of your own responsibility to take all necessary steps to ensure the validity of your claim(s);
  • you have not already registered with another representative body (foundation) that has initiated a collective action against (some of) the Energy Suppliers on this matter, or that you are cancelling or have cancelled your registration/participation with that representative body; and
  • the activities undertaken by the Consumer Justice Foundation to secure this compensation on your behalf do not constitute an attorney-client relationship with you; they are not to be regarded as legal advice and are no substitute for seeking independent legal advice from a qualified solicitor. You should consult your own solicitor regarding specific legal matters.

Information

You must immediately inform the Consumer Justice Foundation of any facts and circumstances that may be relevant to the performance of this agreement.

Exclusion of liability and indemnity

The Consumer Justice Foundation and/or its directors shall only be liable to you or others for a failure in the performance of the assignment if there is intent or wilful recklessness on their part. Any other form of compensation is entirely excluded, unless mandatory law provides otherwise.

A claim for compensation must be submitted in writing to the Consumer Justice Foundation within two months of the damage being discovered or reasonably ought to have been discovered, failing which this right shall lapse.

Validity and amendments

If one or more provisions of these general terms and conditions are wholly or partially void or are set aside, the remaining provisions shall remain in full force. The Consumer Justice Foundation is authorised to amend these general terms and conditions unilaterally and will notify you of this 30 days in advance. The Consumer Justice Foundation will also inform you of the reason for the amendment to the general terms and conditions, which may in any case (but not exclusively) be due to:

  • (i) a change in applicable legislation or regulations;
  • (ii) a court ruling or order in the context of the collective action requiring an amendment to the terms and conditions;
  • (iii) a change in the procedural strategy that is in the interests of the Participants as a whole;
  • (iv) a change in the (funding) structure of the Consumer Justice Foundation; and/or
  • (v) a change that is otherwise reasonably necessary to safeguard the collective interests of the Participants.

These amendments shall only take effect on the commencement date announced in that notice. If no date is specified, the amendment shall take effect as soon as the Consumer Justice Foundation has notified you of it. If you do not agree with a proposed amendment, you have the right to withdraw from the Class Action free of charge. You may exercise this right by notifying the Consumer Justice Foundation in writing or electronically before the date on which the amendment takes effect. Termination shall not affect the rights and obligations that arose prior to termination.

Assignment

The Consumer Justice Foundation is free to transfer its rights and obligations under this Agreement to a third party. The Consumer Justice Foundation is also authorised to have the assignment carried out in whole or in part by a third party.

Complaints

If you have a complaint about the services provided by the Consumer Justice Foundation, you may submit it in writing or electronically to the board of the Consumer Justice Foundation via info@consumerjustice.eu. The Consumer Justice Foundation will then ensure that you are contacted within a reasonable period to discuss the complaint and will endeavour to resolve the matter if it is justified.

Choice of law and jurisdiction

All agreements between you and the Consumer Justice Foundation, including its directors, are governed exclusively by Dutch law. The District Court of Amsterdam has exclusive jurisdiction over any disputes between you and the Consumer Justice Foundation arising from this agreement or related agreements and legal claims.

  1. The Consumer Justice Foundation is a foundation established under Dutch law, with its registered office in Amsterdam at De Entrée 201, 1101 HG, Amsterdam, registered in the trade register of the Chamber of Commerce under number 82763828.
  2. In particular: Budget Thuis B.V., Eneco Consumenten B.V., Energiedirect B.V., ENGIE Nederland Retail B.V., Essent Retail Energie B.V., Greenchoice B.V., Greenchoice Zakelijk N.V., Oxxio Nederland B.V., Vandebron Energie B.V. and Vattenfall Sales Nederland N.V.
  3. ‘Successful’ means any compensation you receive in the future, regardless of who pays it or on what basis (e.g. court judgment, settlement in the Class Action or any other (follow-up) proceedings).