Today, the Nuon-Claim Foundation filed an appeal with the Amsterdam Court of Appeal challenging the district court decision of 9 October 2024, which determined that Vattenfall was not negligent in applying the so-called kW fee.

The Amsterdam District Court’s ruling was highly anticipated as it marked the first judgment in a collective action under the Dutch WAMCA law, which enhances access to justice for individuals and small businesses who might otherwise lack the resources to pursue individual litigation, especially against large corporations.

The 400-million-euro claim brought by Stichting NUON Claim, the foundation established to advocate for a group of small and medium-sized enterprises (SMEs) that are clients of NUON, now part of Vattenfall, pertains to alleged excessive energy charges levied on specific customers.

The foundation asserts that NUON improperly charged specific business clients for electrical capacity without providing any corresponding service or product in return for this kW fee. Additionally, it was argued that many similar customers were exempt from this charge. The foundation contends that the improper fee led to bills that were, on average, 80% higher than those from competing energy suppliers, resulting in excessive annual costs amounting to tens of thousands of euros in some instances.

In its ruling, the District Court of Amsterdam dismissed all claims. The court found the foundation’s argument that Vattenfall had hidden essential information about the kW fee unfounded, emphasizing that the fee could be easily determined from Vattenfall’s proposal. Additionally, the court observed that the details provided on the energy bills explained the pricing framework, confirming that customers were not deceived.

In response to the foundation’s argument that Vattenfall took advantage of some of its customers’ inaction following the introduction of a new annual offer, the court held that customers in a liberalized market have the option to choose between energy suppliers. They can negotiate the terms of their contracts and switch to alternative suppliers if they want to. In this context, customers cannot justifiably complain about their own lack of comparative research.

Vattenfall did not breach any standard of care, nor was there any issue regarding the improper payment of the kW fee. The Amsterdam Court concluded that businesses should have demonstrated greater diligence. It is reasonable to expect that “average, observant businesses” would familiarize themselves with the available energy prices and review the information suppliers provide.

Vattenfall was not obligated to inform its business customers about other customers who might have secured more favourable contract terms or about the likelihood that contracts without the kW charge could be less expensive.

Given that the claimants were unsuccessful and no damages were awarded, the judgment offered limited guidance for funders, lawyers, and others closely monitoring WAMCA developments.

The claim foundation was unsuccessful on substantive grounds. The ruling does not suggest any obstacle to the WAMCA’s ability to provide access to justice for victims of mass harm.

The Nuon-Claim Foundation has now filed an appeal against the ruling. The Court of Appeal is expected to deliver its judgment in early 2026.