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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.

Employers and clients may be thinking, ‘Here we go again...’, but the question of when someone is an employee and when a self-employed person continues to occupy minds. On 11 March this year, the Rotterdam District Court issued the ruling following the Uber judgment in this area - making it well worth dwelling on. 

At issue in this ruling was a manager of a pancake restaurant, who was working on the basis of an assignment contract. After this manager was accused of making a grab from the till, the cooperation between the two was terminated with immediate effect. The question presented to the court: does the cooperation between the parties qualify as an assignment contract or an employment contract? 

The judge applied the line from the Uber judgment one-to-one: all points of view from Deliveroo were assessed in relation to each other, without one factor being decisive. This therefore means that the actual performance of the cooperation was looked at and not just the paper agreements. The conclusion? This business manager was working under a contract of engagement. The factors involved included:

• that the business manager himself had insisted on a commission contract and had himself provided a contract for that purpose;
• that the business manager invoiced weekly at a fixed hourly rate, including VAT;
• that no payroll tax and contributions were withheld, no pay slips were provided and no leave or performance regulation was in place;
• that the business manager was registered as an entrepreneur, had previously worked as a self-employed person and had done so after this assignment;
• that the business manager had taken out liability insurance.

Although this manager received instructions and had a certain degree of embeddedness in the organisation, this did not outweigh the fact that he himself had chosen to work as a contractor and presented himself as such to the outside world. Consequently, the claims brought by the manager for compensation for wrongful termination, payment of the transitional compensation and fair compensation were dismissed.  

What does this mean? This ruling highlights that the contractual and factual interpretation of cooperation is crucial. Employers and Principals would do well not only to make clear agreements, but also to make them fit the intended form of cooperation in practice. Because when and court has to judge, it looks at the overall picture. 

Do you have doubts about using self-employed workers in your company? Or would you like to know more about the legal risks? If so, please contact Dennis Oud, Elke Hofman or Tim van Riel.

You can read the ruling here.

When your licence application is rejected and you, the applicant, object to this, you naturally expect to be an interested party. After all, you are the one who submitted the permit application and the one who received the rejection. In some cases, however, you are then deceived.

This was also the case in the ruling by the interim relief judge of the Overijssel District Court on 18 March 2025. In this case, the applicant wanted the dirt road alongside his plot to be paved. The road was owned by the municipality and therefore the municipality's cooperation was required. The municipality refused to cooperate. The applicant then paved the road as yet. The municipality then initiated enforcement proceedings and imposed an administrative order, to which the applicant appealed. He also submitted a permit application to legalise the paving of the dirt road (as yet). The applicant's objection was declared unfounded and therefore the applicant appealed and applied to the court for injunctive relief. This was because he believed that there was a concrete prospect of legalisation.

The interim relief judge did not follow this view and referred to established case law, which states that the applicant for a permit is in principle presumed to be an interested party in a decision on the application, unless it is made plausible that the activity cannot be realised.

According to the preliminary relief judge, it is likely that the paving of the dirt road cannot be legalised and the municipality is therefore going to reject the permit application. The applicant cannot therefore be considered an interested party; there is no admissible application and therefore no concrete prospect of legalisation. The judge added that there is no reason to make a distinction between an application for a permit for an activity that has yet to be performed and an application with a view to legalising an activity that has already been performed. 

Do you doubt whether you are an interested party in a decision and whether your objection or appeal will be admissible? If so, please contact Gerard van der Wende or with Fleur Huisman. 

You can read the ruling here.

It has often been the subject of litigation in various courts: the interpretation of definitions in zoning plans. What exactly is meant by a specific term and what uses does it cover? These are common questions. 

The ruling discussed in this blog again focused on a definition. Indeed, in its ruling of 12 March 2025, the Gelderland District Court had to rule, among other things, on the definition ‘recreational’. More specifically, it had to assess whether airsoft activities could qualify as ‘recreational’. The zoning plan and the explanation of the plan did not make this sufficiently clear. 

The court referred to established case law of the Division, which states that plan rules must be interpreted literally for the sake of legal certainty. Based on legal certainty, in principle, what is stipulated in the zoning plan must be assumed. For the meaning of a term, therefore, in the absence of points of reference in the zoning plan and the explanation of the plan, a connection must be sought to what is understood by it in general speech. The meaning from the ‘Van Dale Groot Woordenboek van de Nederlandse taal’ can be used. 

The Van Dale describes ‘recreational’ as ‘relating to recreation, from the point of view of recreation, recreational sports more for relaxation than for performance’. The court therefore ruled that airsoft activities should be considered recreational. In doing so, it also took into account that airsoft is a sport certified by the NOC NSF and the business is aimed at ‘team building’ and ‘relaxation’. 

When assessing the meaning of a definition from the zoning plan, therefore, in addition to the zoning plan and the explanation of the plan, the interpretation of that definition in ‘the Dikke van Dale’ is mainly important. 

You can read the ruling here.