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In a recent court case, the Arnhem-Leeuwarden Court of Appeal decided that an employee of a car company was not liable for fraud committed by a colleague. The case involved a claims centre, which is part of employer, which was the victim of fraud by its finance director. Employer then tried to hold another employee, who was head of administration, responsible for the loss.
 
Intent or conscious recklessness required

Under the law, an employee can only be held liable for damage he or she causes to the employer if there is intent or conscious recklessness. This means that the employee deliberately caused the damage or knowingly took a great risk.
 
The court ruled that there was insufficient evidence in this case to show that the head of administration acted intentionally or knowingly recklessly. While she may not have always been alert as head of administration, that is not enough to hold her responsible for the finance director's fraud. The judge also looked at the fact that she was not criminally charged and that the finance director herself stated that she had nothing to do with the fraud.

Internal procedures and controls

A key issue in this case was the way internal procedures and controls were set up at employer. The court found that these were not good enough, increasing the likelihood of fraud. For example, the finance director was the only person authorised to make payments, and there was no proper system of control.
 
Conclusion: high demands for employee liability

This ruling shows the high requirements for an employee's liability for damage caused by a colleague. There must be intent or deliberate recklessness, and the employer must prove this. How internal procedures and controls are set up also plays an important role. If these are not good, this can hinder the employee's liability.

What can employers learn from this ruling?

Employers can learn a number of important lessons from this ruling:

1. Provide clear job descriptions: Make it clear what employees' duties and responsibilities are, especially in managerial positions.
2. Good internal controls: Invest in a good system of checks and balances to prevent fraud.
3. Write procedures: Put procedures for payments and other important financial processes in writing.
4. Look at risks: Regularly evaluate risks within the company and adjust procedures and controls accordingly.
5. Be careful about holding employees liable: Recognise that it is difficult to hold an employee liable and that it is more important to prevent losses by taking proper internal measures. 

By applying these lessons, employers can reduce the risk of fraud and protect the position of employees.
 
Do you have any questions? If so, please contact Dennis Oud, Tessa Sipkema, Elke Hofman or Tim van Riel. 

On 1 January 2024, the Environment Act entered into force. At the same time, four AMvBs came into force, including the Living Environment Activities Decree (Bal). Especially in the beginning, this new legislation was not yet, or not fully, known to citizens and companies. At the time, there was also a lot of confusion about the rules it contained and how they differed from previous legislation. This lack of clarity caused many citizens and companies to commit violations without being aware of it.

Such was the case with the plaintiff in the North Holland District Court ruling of 22 January 2025. The plaintiff operated a car dismantling company and metal trade and violated the applicable environmental rules in the Bal with this business. An order for periodic penalty payments was therefore imposed on him on 30 August 2024.

The plaintiff disagreed with the imposed order. Namely, he argued that in August 2024, the Ball had only just come into force and he did not yet know the provisions of the Ball. The court did not follow this position of the plaintiff. It ruled that the plaintiff is expected to know the laws and regulations applicable to him. This applies in particular to the environmental rules that apply to his car dismantling company.

It is therefore important that as a citizen or business, you are aware of the applicable laws and regulations. Especially if, as a business, you fall under environmental regulations, vigilance is required. Do you have questions about the applicable laws and regulations, or are you facing enforcement because you violated the laws and regulations? If so, please contact Gerard van der Wende or Fleur Huisman.

The reads the ruling here.

On 10 October 2024, a case was at the centre of the Amsterdam District Court in which the Basic Fit had to answer to a consumer. The consumer felt that the Basic Fit was engaging in unfair commercial practices and that its general terms and conditions contained several unfair provisions in the context of consumer protection. The court ultimately ruled that the consumer was right.

Basic Fit advertised with a misleading slogan. You may have seen the slogan yourself saying ‘Sports from € 19.99 per four weeks’. Initially, it seems like a good deal for a year, until one finds out that after a month, the term fee suddenly goes up to € 24.99. Basic Fit referred to their terms and conditions which stated this increase. The consumer disagreed and felt that the advertising was misleading. The hearing also centred on four provisions of the general terms and conditions which the consumer claimed were unfair in the interest of the consumer.

For your information, as a consumer you are extra protected by the law. The law stipulates that some provisions may not simply be included in general terms and conditions to prevent you as a consumer from being powerless against large companies, such as Basic Fit in this case. There are two lists included in the law with all kinds of provisions that are ‘unreasonably onerous’ or ‘presumably unreasonably onerous’, also called the ‘black’ and the ‘grey’ list. Is a provision on one of these lists? If so, then they should not have been in the general terms and conditions.

The court addressed, first, whether Basic Fit's four provisions were on these lists and therefore unreasonably onerous for consumers and, second, whether the advertising was misleading. These will be dealt with in order, as how the court dealt with them at the hearing.

Choice of forum clause

Choice of forum means that a contract can specify which court has jurisdiction. According to the main rule of law, the court that has jurisdiction is the court where the consumer is domiciled. So if you live in Rotterdam, you will usually also go to the Rotterdam District Court. The general terms and conditions stated that disputes would be settled by the court where the consumer had designated Basic Fit as his or her home club. Usually, this will often be the place of residence because people exercise close to home. But suppose you live in Rotterdam but work in Amsterdam and exercise at Basic Fit after work there, so you would have to go to the Amsterdam court. However, such a deviation from the main rule is blacklisted. Even though this provision is not too bad, it was still considered unreasonably onerous and therefore unfair by the court. Thus, the provision was no longer allowed to be included in the general terms and conditions. 

Exclusion clause

If a party includes a clause stating that it is not liable and that the consumer cannot get compensation, this is also considered unreasonable. An exception to this is if the other party can state that the clause is justified. In this case, the Basic Fit excluded all forms of liability for e.g. personal injury suffered in the gym. Basic Fit tried to argue why the clause was included in the general terms and conditions, but could not substantiate why it was justified to include the clause in the general terms and conditions. Thus, the exception did not apply. As a result, the clause was again deemed unreasonably onerous and unfair. 

Termination clause

There was a provision in the general terms and conditions that Basic Fit was authorised to cancel memberships and refuse members access to the clubs. How was this determined? Exclusively by Basic Fit itself. Of course, this is a big disadvantage for consumers, as in principle they can't object to this, while Basic Fit has a lot of power. The legislator thinks so too, which is why this rule has also been blacklisted.  In the general terms and conditions, everything was at Basic Fit's discretion, as a result of which the court ruled that this provision too was unreasonably onerous and unfair.

Price enhancement clause

Finally, the general conditions included a clause stating that Basic Fit was unilaterally entitled to increase the price every year, without notice. However, this has no legal basis. This provision deviates from what is allowed by law to the detriment of the consumer. The court therefore ruled again that the provision was unreasonably onerous and unfair. 

Unfair tagline?

The court lastly addressed the question of whether the slogan ‘Sports from € 19.99 every four weeks’ could be considered unfair. Consumers felt they were misled as the price went up a month later. The court agreed. The court found that Basic Fit had given incorrect and incomplete information about the conclusion of the subscription and thus misled the consumer.

The provisions were annulled and should no longer be in Basic Fit's general terms and conditions. All in all, as a consumer you can still reasonably compete against a big gym!
 
Would you like to know what your rights are with regard to general terms and conditions? Or would you like to have general terms and conditions drawn up for your company? Then contact one of our corporate law lawyers!

Friday 7 February 2025 marked the first time in employment law land that the Supreme Court has delivered a judgment on the Whistleblowers Protection Act (Wbk). 

The Wbk

Although since the abuses at the Voice of Holland, among others, it has been a common good to properly protect whistleblowers from possible retaliation, the Wbk does not apply to every company. It is mainly medium-sized (50 to 249 employees) and large (more than 250 employees) companies that really need to pay close attention to this. 

An important part of the law is that a whistleblower may not be harmed because of his report if he has reasonable grounds to believe that his report is correct. Building on this, the Wbk has a presumption of evidence in favour of the whistleblower. In short, this presumption of evidence means that if a reporter is disadvantaged after his report, for example if the reporter is subsequently dismissed, it is assumed that this is inextricably linked to the report or its disclosure.

What to do as an employer?

It may happen that an employee has made a whistleblower report and the employer wishes to impose a measure on him for it, such as dismissal. Whether this can actually be done depends on the circumstances of the case, which now adds an onerous extra circumstance.

Indeed, the presumption of proof means that the employer starts at a disadvantage, and namely it is up to her to prove that the employee is not disadvantaged because of the whistleblower report. The Supreme Court has indicated that to do so, it is insufficient to ‘disprove’ the cause-and-effect relationship between the measure and the report. As an employer, you really have to prove that the whistleblower report has nothing to do with the intention to impose the measure. And this is a lot trickier, since as an employer you really have to prove otherwise.

As an employer, it is of course always important to (be able to) substantiate well why a dismissal is being decided. In the case of a whistleblower's report, after this Supreme Court ruling, we can say that the bar is set a little higher in that case.
Do you have questions about this or would you like advice on your whistleblowing policy? If so, please contact our employment law specialists: Dennis Oud, Elke Hofman-Bijvank, Tessa Sipkema or Tim van Riel.

You can read the ruling here.

To lodge an objection or appeal against a decision of an administrative body, you, as a citizen or business, must be considered an interested party. It is clear from established case law that the person directly affected by the actual consequences of an activity authorised by the decision is, in principle, an interested party. The factors considered are distance from, view of, planning impact of and environmental consequences of the activity the decision authorises. 

What citizens and businesses often think is that once they have been interested parties in a development near them, they are always interested parties in future cases. So did the applicant in the Divisional Court ruling of 28 January 2025. 

What exactly was going on here? The applicant had not only lodged an appeal, but also requested the Division to grant a preliminary injunction because the Gooise Meren Municipal Executive had granted an environmental permit for the expansion of the existing canopy for fast charging on a plot in the applicant's neighbourhood. Mind you, the environmental permit only covered the extension of the canopy and not the installation of the fast chargers. 

Despite the fact that his objection was declared inadmissible and his appeal unfounded, the applicant believed he was an interested party. He argued that in the past, he had been considered an interested party in developments near the parcel now affected by the environmental permit. The Division did not agree. It ruled that the applicant was not an interested party because the distance between the applicant's home and the plot in question was more than 800 metres. Although the applicant might suffer some impact from the extension of the canopy, it could not be said to be an impact of any significance precisely because of the large distance between the two plots. It was irrelevant that the interested party had also been an interested party in the past. After all, the circumstances of the case are always considered.

You can read the Division's decision here.

Padel is hot among the sporting public. Although padel courts are springing up like mushrooms, it is still a struggle to reserve a court. Despite padel rapidly gaining popularity among the general public, local residents are increasingly complaining about nuisance or trying to prevent the arrival of new courts. Consequently, the Administrative Law Division of the Council of State increasingly has to rule on the desirability and admissibility of new padel clubs. 

This week, two new decisions were published in which the Division ruled on the arrival and possible expansion of padel clubs. In one judgment, the municipality was found to have acted correctly, while in the other the municipality was reprimanded.  

First, the ruling of 27 January 2025. The council of the municipality of Maashorst adopted a new zoning plan, which allows for a multifunctional sports accommodation. The applicant disagreed with the adoption of this zoning plan, as he feared adverse effects of (in particular) the noise of the two padel courts on his residential and living environment. The Division ruled that in this case the council's reasoned position, that an acceptable living and working environment would be maintained, could be followed. The applicant has not sufficiently demonstrated that this would not be the case. After all, the council has also submitted a noise report and the Division saw no reason to doubt this report. 

In the other ruling dated 29 January 2025, the Division ruled differently. Here, the Division had to consider whether the planning regulations in the adopted zoning plan ‘Woongebieden Kom Uden’ were strict enough with regard to the realisation of new padel courts. In fact, new padel courts may be built on land zoned ‘Recreation’ without restriction, or at least no restriction has been included about this. The appellants therefore feared that their living conditions would be affected. They argued that the council had not conducted a new acoustic survey before this new zoning plan was adopted. The Division ruled that the council could not have adopted the zoning plan on this point without having a new acoustic investigation carried out into the noise pollution caused by the playing of padel within the entire sports complex. The zoning plan cannot therefore stand on this point. 

Do you have any questions in this regard? If so, please contact Gerard van der Wende or Fleur Huisman.