Onrechtmatige overheidsbesluiten

Abstract

Unlike many other European jurisdictions, Dutch law treats the liability of the gov-ernment in essentially the same way as the liability of private parties. This can be explained by the fact that governmental liability has mainly been developed by the civil courts, which apply ordinary civil law. In 1992, the legislator explicitly refrained from creating specific liability law for public law decisions, arguing that the Civil Code was sufficiently flexible to take the special position of public authorities into ac-count. This argument is the object of my thesis: do the rules of private law take sufficient account of the political aspects of governmental liability for public law deci-sions? My analysis has focused on two categories that illustrate the specific position of the government in the context of liability law. First, sometimes it is deemed desirable that the government pays damages notwithstanding the fact that the contested decision is perfectly lawful. In my view the Civil Code, flexible as it may be, does not provide a legal basis for such liability. That may explain why the civil courts have created liability for lawful governmental acts under par. 6:162 of the Civil Code, which provides for liability for unlawful acts. By contrast, the administrative courts have created a separate liability for lawful acts on the basis of unwritten law. However, this approach is difficult to reconcile with the rule that legal obligations can only arise from statutory law. Consequently, in my opinion the legislator has to introduce specific legislation to give the existing liability for lawful governmental acts its necessary statutory underpinning. Second, in some cases it is deemed desirable that the government is not liable, notwithstanding the fact that the contested decision is considered to be faulty. This is especially the case when the decision is subject to appeal to an administrative court. Both the civil and the administrative courts have therefore adopted the doctrine of formal legal effect. Pursuant to this doctrine a decision which has not been quashed or revoked in an administrative procedure is regarded as lawful, even if it is manifestly against the law. This doctrine can lead to unnecessary court proceedings. For example, the fisherman from whom a fishing permit for the year 2000 is withheld, is com-pelled to pursue administrative proceedings to obtain a permit even if the year 2000 has long since passed, if he is to maintain a claim for damages. However, the doctrine has proven useful in cases where a claim for damages would boil down to annulment proceedings. In my opinion, in both examples the flaws in the courts’ reasoning stem from a focus on the unlawfulness of the decision (the fundamentum petendi). In my thesis I advocate a shift of focus to the claim itself (the petitum). Disconnecting the action for damages from the action for annulment will enable the courts to maintain the validity of (inevitable) governmental decisions without denying the victims of the decision due compensation. Thus, substantial changes in legislation can be avoided