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Article 1:2 Awb defines an interested party as: “the person whose interest is directly affected by a decision”. This definition is relevant because only interested parties can object to (or appeal against) a government decision.

Despite the fact that the concept of interested party has been included in the Awb since 1994, and that law is still in force, the interim relief judge of the district court of Oost-Brabant saw reason to test whether the concept of interested party still has the same meaning since the Omgevingswet came into force. He did so in his ruling of 20 March 2025.

In this case, a local resident had objected to an environmental permit for the construction of four padel courts and the relocation of a tennis court at a sports complex. Her objection was declared inadmissible as the college considered that she was not an interested party. The local resident appealed against this and filed an application for injunctive relief with the court. She believed that she was an interested party because the plan would have a disproportionate impact on her living environment.

In order to assess whether this was actually the case, it was necessary to test Article 1:2 Awb. Before getting to this, the interim relief judge first pointed out that the environmental permit had been granted under the Environment Act. Under the old law (the Wabo), the Division developed a lot of case law on the concept of interested party. The question now is whether that case-law and the operation of the stakeholder concept also apply under the Environment Act. The interim relief judge ruled that it does. After all, Article 1:2 Awb has not changed with the entry into force of the Environment Act, nor have the consequences of an environmental permit for the construction of padel and tennis courts changed.

For the neighbouring resident in this case, this meant that she was not an interested party, as she had no view of the padel and tennis courts and she lived at too great a distance from the courts, so she would not experience nuisance of any significance.

It can be concluded that the stakeholder concept remains applicable under the Environment Act as well. For the sake of completeness, please note that this is a court ruling. The Division has yet to rule on this issue.

You can read the ruling here.

It is often a point of debate: the date of notification and the date of publication of a decision. Which of the two is now leading for the start of an objection or appeal period? This is essential information, because if the wrong date is chosen, a citizen or company may simply be too late to file an objection or appeal because the deadline has already passed. 

Such a situation was discussed in the decision of the Administrative Law Division of the Council of State on 9 April 2025. A third party had objected to an environmental permit granted to Vodafone Libertel B.V. to erect an antenna set-up point. However, the college of the municipality of Emmen had declared that objection inadmissible because the objection period had already expired before the objection was submitted. In fact, the decision to grant the licence was already dated 18 October 2022, which meant that the objection period had started on 19 October 2022. The third party did not file an objection until 8 December 2022. By then, the objection period had already expired, making the objection too late and declared inadmissible. The third party could not agree with the inadmissibility declaration, as it believed that the publication in the Municipal Gazette was incorrect. Indeed, the publication stated that ‘the date of publication was mentioned first’. According to the third party, that first mentioned date is 1 November 2022 and not 18 October 2022. This lack of clarity in the publication could not be blamed on the third party. 

The Division ruled that it is clear that the decision to grant the permit was published to the applicant on 18 October 2022, after which the objection period began. The notice was then published in the Municipal Gazette. According to the Division, there is no reason to rule that there is an unclear publication in the Municipal Gazette, as it clearly states that the environmental permit was announced on 18 October 2022. The fact that the top right of the page shows the date 1 November 2022, the date of issue of the Municipal Gazette, does not mean that this is the publication of the decision. After all, this is the date of publication. The Division also took into account that the third party was assisted by a professional legal adviser and therefore more could be expected of him. 

In short, this means that it is very important to keep an eye on when the objection or appeal period actually starts to run. After all, filing a notice of objection or appeal too late can have major consequences. 

Do you need help objecting to or appealing a government decision? Then contact Gerard van der Wende or with Fleur Huisman. We will be happy to help you. 

Read the ruling here.

A recent judgment of the Arnhem-Leeuwarden Court of Appeal dealt with an interesting case that reminds us of the complexity of fraud in the workplace. In it, it was found that an employee was not liable for fraud committed by her supervisor. This raises an important question for employers, namely how do you deal with suspicions of fraud within the organisation? 

Steps to take

If an employer suspects that an employee is involved in fraudulent activities, it is important to go through a number of steps. First, start by gathering evidence. There is no point in accusing an employee of fraud if, as an employer, you cannot substantiate it. Next, it is important to have a conversation with the employee in question to confront them with the suspicion. This conversation should be open and honest and preferably the employee should be invited to the office.

Depending on the outcome of this conversation, an employer may consider various measures. These can range from an official warning to, in the worst case, summary dismissal. Here, it is important to make the right consideration as a wrong decision can have significant adverse financial consequences.

The damages

If an employer then wishes to hold the employee liable, it is important to remember that intent or deliberate recklessness is necessary to do so. Proving either can be quite a difficult task for an employer. 

Prevention

It is always, but even more so in the case of fraud, best to prevent rather than cure. This starts with strengthening the integrity culture within the company where clear guidelines and control systems are essential. For example, also consider checking references with new employees or requesting a Certificate of Good Conduct (VOG) as standard.

Finally, every situation is unique. What works for one company may not be as effective for another. Stay alert and prepared, and remember: in the fight against fraud, knowledge of the law is indispensable. If an employee suspects fraud, it is important to seek timely legal advice.

Do you have questions about this or are you dealing with (suspected) fraud? If so, please contact Dennis Oud, Tessa Sipkema, Elke Hofman or Tim van Riel.

You can read the ruling here.

A frequently heard statement from citizens and businesses is that ‘the municipality has said that...’. This often refers to a statement made by an official, or an administrative body. The question that often arises in such cases is whether a certain promise by a civil servant or an administrative body can be attributed to a (different) administrative body. 

In the Supreme Court ruling of 28 March 2025, this question again came up. More specifically, this ruling concerned a promise made by aldermen and case managers, as representatives of the college, which could be imputed to the municipal council. 

The Supreme Court ruled that ‘in order to answer the question of whether there is an undertaking to be fulfilled by the municipality, the yardstick developed by the Division must be used’. According to this yardstick, a promise made can be imputed to the competent administrative body if the person concerned had good reason to assume that the persons who made the promise thereby interpreted the opinion of the administrative body. 

If the municipal council is the competent administrative body, actions by (members of) the municipal executive and municipal officials are only attributable to the municipal council if the municipal council has made it clear that it agreed to those actions. Only then can a citizen or company assume on good grounds that these persons represented the opinion of the municipal council. The main reason for this is that the municipal council, unlike the college, is a democratically elected administrative body and its scope to weigh up its own interests should not be impaired. 

What does this mean for practice? Do not always assume that every municipal employee speaks on behalf of a governing body. Especially in the case of promises allegedly made on behalf of the municipal council, you may be deceived. Even promises made by an alderman cannot be attributed to the council, if the council is the competent governing body.

You can read the ruling here.

In previous blogs, I have frequently discussed the different types of remedial sanctions. In most cases, this involved an order for incremental penalty payments, but it is also possible for an administrative body to impose an order for administrative coercion, ordering a violator to end a violation, otherwise the administrative body will do so.

The order for administrative coercion was also at the centre of a ruling by the Administrative Law Division of the Council of State on 12 February 2025. The offender had received an administrative coercion order because of an excessive fire load in his home. This was because he had accumulated so many items in his home and he was using electricity in such an unsafe manner that it would be impossible for the fire brigade to provide assistance in the event of an emergency. As the offence did not end the violation, the college applied administrative coercion. The college charged the cost of this to the violator. To carry out the administrative coercion, the administrative body had to enter the house by means of an authorisation. However, such an authorisation is only valid for three days, and in this case the college had only entered the house after four days, so the authorisation was no longer valid. In addition, the college had immediately destroyed the removed items, whereas it should have kept them for a fortnight. 

Given the mistakes the college had made in its implementation, the Division ruled that the college should not have been allowed to recover the costs of the administrative enforcement from the offender. 

What does this mean for practice? If, after receiving an administrative coercive order, you as a citizen or company do not terminate the violation yourself, the college may apply administrative coercion. In that case, pay close attention to whether the college implements the administrative coercion correctly and check whether it can recover the costs from you. 

Do you have any questions about recovering costs of administrative coercion or about recovery sanctions in general? If so, please contact Gerard van der Wende or Fleur Huisman. 

You can read the ruling here. 

Exactly five years ago, the world was turned upside down. The first measures regarding the Covid-19 period were then taken by the government. Companies had to close down and everyone had to be quarantined. Fortunately, we can say that these days are behind us, but to what extent does Covid-19 still play a role in the case of directors' liability? In an interesting article, summarised in the following, Mr L.A. van der Werf and Mr R.J.H. Berghuis examine court rulings on the extent to which directors can dismiss their directors' liability by invoking the Covid-19 crisis when their company went bankrupt.[1]  It first briefly explains how to be held liable as a director and then briefly discusses the research to what extent judges (still) accept the ‘Covid defence’ today.

Director liability

In the event of bankruptcy, a director can be held liable in two ways. Firstly, by the trustee under Art. 2:248 of the Civil Code and secondly by third parties under Art. 6:162 of the Civil Code.

In the case of Section 2:248 of the Civil Code, the trustee has to prove that there was an estate shortfall at the time of bankruptcy and that this was due to the director's improper conduct. The standard for this is that no reasonably thinking director, under the same circumstances, would have acted in the same way. Unforeseeable circumstances should be disregarded for this purpose. In addition, the director must know that creditors would be harmed by his actions. If a director failed to fulfil his accounting or administrative obligations, this is presumed to be the reason for the bankruptcy and therefore the director acted improperly.  

In the case of Art 6:162 of the DCC, the director must be able to be blamed seriously. This is where the Beklamel standard is relevant. This implies that there is a serious fault if the director knew, or should have known, when entering into an agreement that the company would not be able to meet its obligations and also could not offer sufficient recourse if damage would arise as a result. 

Due to the Covid-19 crisis, many companies went bankrupt, sometimes holding the director liable. To what extent could corona be used as an excuse to avoid liability? 

Case law research

Mr L.A. van der Werf and Mr R.J.H. Berghuis analysed case law between 2020 and 2024 to clarify the extent to which judges went along with a covid defence. A total of 18 relevant judgments were rendered in the context of directors' liability in which a covid defence was raised. Thus, in these judgments, the directors had to prove that corona was the main reason for the bankruptcy. 

There were 12 rulings in the context of a claim under section 2:248 of the Civil Code and 6 rulings in the case of section 6:162 of the Civil Code. 

The 12 decisions under Art 2:248 DCC thus involved a trustee in bankruptcy holding the director liable for improper conduct. In the end, the court went along with the covid defence in only 1 case. Indeed, the bankruptcy of this company took place during the first lockdown, when the government had not yet offered any support measures. In addition, the court ruled that the receiver was not allowed to base liability on relevant information that was not disclosed until after the lockdown.  In the other rulings, corona played a role, but was not the main reason for the bankruptcy. Some companies already had tax debts, for example, so the judges ruled that the corona crisis did not play a decisive role in this. So the fact that there was a crisis did not mean that this could simply be used as an excuse.

The other six rulings looked in more detail at whether the director could be seriously blamed and whether this meant that third parties could hold the director liable in the event of bankruptcy. The bar for this standard is high and thus not often adopted by courts. The covid defence succeeded in 5 out of 6 cases. The study shows that a claim of serious fault depends very much on the circumstances of the case and, in view of the crisis, serious fault is not easily assumed. Each ruling looks at the consequences of corona on a case-by-case basis and whether the company could actually no longer meet its obligations. In addition, general circumstances are also taken into account, such as that online shops became more popular, for example. Mr L.A. van der Werf and Mr R.J.H. Berghuis conclude that all these general circumstances also play a major role while determining whether a serious fault exists. 

Conclusion

In view of the fact that at the time of the corona crisis, many companies went bankrupt, it is striking that corona was not often used as a reason for bankruptcy. There are only 18 published judgments in which the covid defence was really central. In addition, the outcomes of the two forms of liability are contrasted. Whereas a covid defence does not succeed in the case of improper conduct, it does succeed when serious culpable conduct must be assessed. In both cases, at least, it can be concluded that it is very casuistic in nature and that directors need to properly demonstrate that they have their records in good order. 

Five years on, many companies are still feeling the aftermath of the corona crisis. However, invoking the crisis to avoid liability will be less and less likely to succeed. Let us also hope that invoking this defence will not be necessary in the future.  

Do you still need help in the case of directors' liability or have other corporate law questions; our Corporate Law lawyers will always be at your service!

[1] L.A. van der Werf and R.J.H. Berghuis, ‘Directors’ liability and Covid-19. Is the ‘covid defence’ (still) valid?’, Journal of Trustees, 2024, no. 6.