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Under Dutch law, a tort (onrechtmatige daad) obliges the wrongdoer to compensate the damage it causes. Article 6:162 and 6:163 of the Dutch Civil Code (DCC) set five requirements: an unlawful act, attribution to the wrongdoer, damage, causation and relativity. Tort liability applies to companies, individuals and public bodies alike, and it can also exist between parties who have a contract.
Once the requirements are met, the wrongdoer must compensate the damage (Article 6:162(1) DCC). In English law, the individual torts have developed mainly through case law. Dutch tort law is instead based on one general statutory provision, supplemented by specific rules on liability for persons and things, for example in Articles 6:169 to 6:174 DCC. Our Dutch liability attorneys are happy to help you.
Which law applies to a cross-border tort?
Our Dutch attorneys specialized in tort are familiar with Dutch law and international law. In cross-border situations, the Rome II Regulation (Regulation (EC) No 864/2007) determines the law applicable to non-contractual obligations in the EU Member States other than Denmark (Article 1(4) Rome II).
As a rule, the law of the country in which the damage occurs applies, irrespective of the country in which the event giving rise to the damage occurred (Article 4(1) Rome II). If the person claimed to be liable and the injured party both have their habitual residence in the same country when the damage occurs, the law of that country applies (Article 4(2)). If the tort is manifestly more closely connected with another country, for example through an existing contract between the parties, the law of that country applies (Article 4(3)). The UK adopted The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, which largely keep the Rome II rules in UK law. EU Member States will also apply English law where Rome II points to it, because the Regulation applies whether or not the applicable law is that of a Member State (Article 3). Finally, the parties can choose the applicable law by an agreement made after the event giving rise to the damage and, if all parties are pursuing a commercial activity, also by an agreement freely negotiated before that event (Article 14(1)).
How does tort work under English law?
Under English law the most common type of tort is negligence and nuisance. For liability to be found there must be four conditions met:
- A duty of care
- A breach of that duty
- Damage with causation
- Foreseeability
The conditions and their respective tests overlap and under English case law it is not a straight-forward four step test but an assessment of the existing precedents in case law.
What are the requirements for a tort under Dutch law?
Under Dutch law, torts are governed by Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek, BW). Damages can be claimed if five conditions are met: an unlawful act, attribution, damage, causation and relativity (Articles 6:162 and 6:163 DCC).
When is an act unlawful?
Dutch law distinguishes three categories of unlawful acts: an infringement of a right, an act or omission in breach of a statutory duty, and an act or omission contrary to what is generally accepted as proper social conduct under unwritten law (Article 6:162(2) DCC). In each case the act is not unlawful if there is a ground of justification (rechtvaardigingsgrond), such as self-defence. An infringement of a right, for example of physical integrity or of property, is in principle unlawful. For the third category, the courts weigh all circumstances of the case.
When can the unlawful act be attributed to the wrongdoer?
The unlawful act must also be attributable to the wrongdoer. That is the case if it is due to his fault, or to a cause for which he is accountable by law or according to generally accepted views (Article 6:162(3) DCC).
Which damage can be claimed?
The injured party can claim financial loss, which covers both losses suffered and lost profits (Articles 6:95 and 6:96(1) DCC). Other loss, such as non-material damage, can only be claimed where the law provides for it (Article 6:95(1)). This is the case, for example, if the wrongdoer intended to cause such loss, or if the injured party suffered physical injury, damage to his honour or reputation, or was otherwise harmed in his person (Article 6:106 DCC).
What causal link is required?
Dutch law also requires a causal link between the unlawful act and the damage. Only damage that is connected with the event in such a way that it can be attributed to the wrongdoer as a consequence of that event qualifies, taking into account the nature of the liability and of the damage (Article 6:98 DCC). The burden of proving the causal link lies in principle with the injured party. If circumstances attributable to the injured party also contributed to the damage, the compensation is reduced in proportion, unless fairness requires a different division (Article 6:101(1) DCC).
What is the relativity requirement?
Finally, there must be relativity: there is no obligation to pay damages if the norm that was violated does not serve to protect against the damage as suffered by the injured party (Article 6:163 DCC).
When are you liable for other persons or for things?
Besides liability for your own unlawful acts, Dutch law contains specific forms of liability for other persons and for things, which largely do not depend on your own fault:
- Children: parents or guardians are liable for conduct of a child under 14 that would be a tort if the child’s age did not prevent it; for children aged 14 and 15 they are liable unless they cannot be blamed for not preventing the conduct (Article 6:169 DCC).
- Employees: an employer is liable for a fault of a subordinate if the task increased the risk of that fault and the employer had control over the conduct concerned (Article 6:170(1) DCC).
- Non-subordinates: a business is also liable towards third parties for a fault committed by a non-subordinate who carried out work for it in the course of its business (Article 6:171 DCC).
- Dangerous movable things: the possessor of a movable thing that is known to pose a special danger if it does not meet the required standards is liable when that danger materialises, subject to a limited defence (Article 6:173(1) DCC).
- Buildings and structures: the possessor of a building or structure that does not meet the required standards and thereby poses a danger is liable when that danger materialises, subject to the same limited defence (Article 6:174(1) DCC).
When does a tort claim become time-barred?
A claim for damages becomes time-barred five years after the day following the day on which the injured party became aware of both the damage and the person liable, and in any case twenty years after the event that caused the damage (Article 3:310(1) DCC). For damage caused by, among other things, pollution of air, water or soil, the long-stop is thirty years (Article 3:310(2)). For personal injury or death, only the five-year period applies (Article 3:310(5)). A claim for damages is a claim for performance of an obligation, so a written notice in which the injured party unambiguously reserves its right to compensation interrupts the limitation period (Article 3:317(1) DCC; Supreme Court 28 March 2014, ECLI:NL:HR:2014:766); bringing a claim interrupts it directly (Article 3:316(1) DCC).
Frequently asked questions about tort under Dutch law
Can you claim in tort if you have a contract with the wrongdoer?
Possibly. Article 6:162 DCC does not exclude tort liability between contracting parties. In practice, however, a claim between contracting parties is usually based on breach of contract, which obliges the debtor to compensate the damage unless the breach cannot be attributed to him (Article 6:74(1) DCC).
Can you claim non-material damage for a tort under Dutch law?
Only where the law provides for it (Article 6:95(1) DCC). Article 6:106 DCC allows compensation, assessed on the basis of fairness, if the wrongdoer intended to cause such harm, or if the injured party suffered physical injury, damage to his honour or reputation, or was otherwise harmed in his person.
Is a Dutch employer liable for torts committed by its employees?
Yes, for a fault of a subordinate, if the risk of that fault was increased by the instruction to perform the task and the employer had control over the conduct in which the fault consisted (Article 6:170(1) DCC). A business can also be liable for faults of non-subordinates who carry out work for it in the course of its business (Article 6:171 DCC).
When does a tort claim become time-barred in the Netherlands?
Five years after the day following the day on which the injured party became aware of both the damage and the person liable, and in any case twenty years after the event that caused the damage (Article 3:310(1) DCC). For personal injury or death, only the five-year period applies (Article 3:310(5)).
Which law applies if the damage occurs in another country?
Within the EU, the Rome II Regulation applies. As a rule, the law of the country where the damage occurs governs the tort (Article 4(1)), unless both parties have their habitual residence in the same country (Article 4(2)) or the tort is manifestly more closely connected with another country (Article 4(3)). Parties can also choose the applicable law (Article 14).
Primary sources
- Dutch Civil Code Book 6: Articles 6:74, 6:95, 6:96, 6:98, 6:101, 6:106, 6:162, 6:163, 6:169, 6:170, 6:171, 6:173 and 6:174
- Dutch Civil Code Book 3: Articles 3:310, 3:316 and 3:317
- Regulation (EC) No 864/2007 (Rome II), Articles 3, 4 and 14
Our Dutch attorneys in the Netherlands have acquired subject-specific expertise over the years and will be happy to assist you in asserting claims for damages in tort. If necessary, our litigation attorneys at MAAK Advocaten at Law can also help you to sue and enforce your claims in tort.
Do you need a Dutch attorney specialized in tort?
Do you have questions about a tort claim or do you need specific legal advice in Holland on the subject of tort under Dutch law? Our Dutch specialist attorney specialized in tort, Remko Roosjen, will be happy to help you.
