Every day, public authorities interact with private parties in countless ways and concerning a diverse range of issues. Example include the conclusion and implementation of contracts (e.g. operating agreements), when issuing decisions (e.g. permits, zoning plans, social assistance, enforcement) and in carrying out acts connected with government responsibilities without an intended legal effect (e.g. maintenance of public green spaces, roads). In the course of such interactions, situations may arise in which a party considers the authorities to have caused losses that should be compensated.
Such situations could include the failure to fulfil a contract, issuing an erroneous decision or errors in the performance of a government responsibility. Such private claims against the government are on the rise. Depending on the specific circumstances and the nature of the claim, government liability cases can be settled under either administrative or civil law. In either scenario, the central question is whether the government acted unlawfully (within the meaning of Section 6:162 of the Dutch Civil Code). Occasionally, authorities may be held liable for losses resulting from lawful acts, referred to as ‘compensation for loss resulting from administrative acts’.
This could happen in cases where the government conduct in itself was correct (i.e. lawful) but one or more private parties suffered a disproportionate loss. A subcategory here is losses resulting from government planning decisions, which arise when a private party suffers losses as a result of a new zoning plan, due to either a reduction in the value of their plot or loss of income. Another possible scenario concerns the government as an employer. In this latter capacity, the government has a duty of due care to its employees (public servants) and may be held liable on this account, for instance in the event of work-related accidents.
The government’s responsibility for road maintenance (pursuant to Section 6:162 and/or Section 6:174 of the Dutch Civil Code) also deserves mention in this connection, specifically in the case of situations where the conditions of a road fall short of the acceptable standards in the given context.
Our lawyers assist various government bodies on questions of government liability on a daily basis, and in the settlement of both civil and administrative law aspects. This includes claims for liability, but in many cases it is possible to avoid such claims altogether by thinking a few steps ahead at the outset, such as when drawing up the contract.
