The Netherlands

Summary

INTRODUCTION

OVERVIEW

The Dutch doctrine of public authority liability is rather complex, covering both public and civil law, as well as procedural and substantive law. The civil component is mainly based on the general civil tort clause of art 6:162 of the Dutch Civil Code (Burgerlijk Wetboek) (hereaft er: CC). In legislation there is no specific legal regime for public authority liability as such. However, in case law tailored rules have been developed in order to adequately deal with the special position of public authorities.

A specific set of norms of good governance (algemene beginselen van behoorlijk bestuur), which public authorities have to comply with, has been developed. A breach of one of these norms can lead to liability of a public authority for unlawful conduct, whereas such conduct would not have been unlawful for a company or a citizen. Then again, the reverse situation is also possible: a State's conduct can be regarded lawful, whereas it would be considered unlawful if it concerned the conduct of a private party. Since the State looks after the public interest, within the framework provided by the Constitution and the laws, one can argue that the basic assumption is that State conduct is lawful conduct. The State has (to some extent) discretionary power in order to achieve these goals. Furthermore, damages paid by public authorities are paid from the public means, which can be a restraining factor in granting damages. The doctrine of public authority liability is, and has always been, a balancing act between the State's and society's interests on the one hand and those of individuals on the other hand.

Public authority liability can be invoked with regard to the full range of conduct of public authorities. It can concern unlawful acts of administration, regulations and judgments. Conduct that is regarded as lawful but disproportionately affects specific groups in society can fall within the scope of the tort regime as well – provided that the damage is not properly compensated for by the public authorities. Liability for such lawful conduct is based on the principle of égalité des charges publiques.