The Dutch law system on business tort (and tort law in general) is well founded in the Dutch Civil Code. Dutch law gives adequate protection against fake claims for liability or excessive damage claims against companies. In the Netherlands, civil liability for what in the U.S. would be considered the tort of negligence stems from the Dutch legal doctrine of onrechtmatige daad (literally “unlawful act”). Onrechtmatige daad is a civil wrong provided for under art. 6:162(1) of the Dutch Civil Code. A company (through actions of people it’s liable for) may also be liable for a business tort.
Business torts in the Netherlands
Examples of classic business torts are for example wrongdoing in the business relationship: unfairly interfering with another’s business, a company engages in unethical business practices, a competitor spreads false rumors in the marketplace, or confidential information or trade secrets are misappropriated. A Dutch tort litigation attorney also deals with fraudulent inducement to contract, slander, misappropriation of trade secrets, trade libel, defamation, breach of fiduciary duty, unfair competition, tortious interference with contract or prospective business relations. Feel free to contact litigation attorney Mark van Weeren with any question you may have on business torts in the Netherlands.
Dutch law elements of tort
Under art. 6:162(1) of the Dutch Civil Code, there are five main elements that need to be made out in order to establish negligence, namely:
• Unlawfulness (onrechtmatigheid)
For the purposes of art. 6:162(1), an act or omission will be unlawful if it is in breach of a specific right, is in breach of a statutory duty or is in breach of unwritten, but socially accepted norms.
• Culpability (toerekenbaarheid)
According to art. 6:162(1), the negligent act must be attributable to the defendant. The element of culpability will be present where fault can be attributed to the defendant or if the unlawful act lies within the range of risks falling on the defendant.
• Loss (schade)
According to art. 6:162(1), a tortfeasor who commits an act of negligence will be liable to compensate the affected party for the harm suffered. As such, without harm there will be no liability in negligence. Harm can take many forms such as pain and suffering, cost of medical bills, loss of earnings).
• Causation (causaal verband)
According to art. 6:162(1) there must be a causal link between the unlawful act and the loss suffered. This is often expressed in the form of a “but for” test (i.e. would the loss that was suffered have been incurred but for the tortfeasor’s unlawful act?).
• Relativity (relativiteit)
Article 6:163 Dutch Civil Code provides for a fifth element: a relative link between the harm and the right or obligation which has been breached. According to this provision, there will be no liability where the right or obligation that was breached does not extend to protecting against the kind of concrete loss that was suffered.
Company’s risks of liability under Dutch Law
A Company may exposed to risks of liability in the Netherlands for
i) general negligence claims on the basis of art. 6:162 of the Dutch Civil Code because of unlawful acts e.g. by employees or any other business torts, but also
ii) product liability claims brought on the basis of art. 6:185 of the Dutch Civil Code when a product is unsafe or cause damage because af a defect.
The Company could potentially expect to see these claims brought i) buyers/users of its product and ii) individuals who are injured or whose property is damaged by actions attributed to the Company the Products. A general business insurance of the company should cover the risks for liability when doing business in the Netherlands.