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We would like to welcome Iris Keemink to De Haij & Van der Wende Lawyers! Iris starts with us as a lawyer and brings a fresh perspective and sharp analytical skills. 

With great enthusiasm, Iris completed the Master's in Private Law and the Master's in Corporate Law at Erasmus University Rotterdam. After obtaining the masters, Iris spent some time teaching at Erasmus University Rotterdam. After a few enjoyable years, Iris made the step to the legal profession, because she knew from an early age that she wanted to become a lawyer.

With her pleasant personality and drive, she supports our team in terms of content and strengthens our knowledge and expertise at the office. We are looking forward to a pleasant cooperation!

If you as a citizen or company construct a structure without the necessary permits, or use your plot in a way that is not permitted by the zoning plan, the administrative body will generally take enforcement action. This is because the administrative body has the so-called “duty of principle to enforce. This means that if there is a violation, the administrative body must, in principle, enforce in order to end the violation (or have it ended). Such an enforcement procedure can cause a great deal of frustration for citizens and businesses, especially if they notice that there are many similar cases in the area where citizens and businesses commit the same violation and where there is no enforcement by the administrative body. Can this be done just like that? 

This issue was discussed by the District Court of The Hague in its ruling of Oct. 11, 2024. The plaintiffs had an order under penalty payments imposed on them because they had constructed structures on their property without an environmental permit. The plaintiffs argued that the enforcement by the college violated the principle of equality, because several structures in the area had been built without an environmental permit, against which the administrative body did not take action. The court ruled that to successfully invoke the principle of equality, there must be equal cases that are treated unequally, without good cause. The principle of equality requires the administrative body to pursue a consistent and well-considered administrative policy in cases where similar violations are committed by different offenders. Thus, the administrative body must provide clear direction and follow a general line of conduct regarding enforcement action in similar cases.

This case indeed involved a violation of the principle of equality. Despite the court's understanding that the board cannot take action against all illegal structures at once, the board did not specify when it will conduct inspections against the other illegal structures and how this relates to its enforcement policy. The administrative body has not provided sufficient reasons as to why enforcement in similar cases is not carried out, as a result of which the enforcement decisions are not based on solid grounds and there is a clear violation of the principle of equality. 

Have you received an enforcement decision for an illegal construction or use, while there are several similar cases in your area, or do you simply disagree with the enforcement decision? If so, please contact Gerard van der Wende or Fleur Huisman.

You can read the ruling here 

In large cases, such as zoning proceedings, stakeholders often choose to litigate together. By doing so, they want to save costs, especially legal fees. This way, they think they are cheaper. In practice, however, this is not always the case. So too in the ruling discussed in this blog. 

Indeed, in its ruling of 9 October 2024, the Administrative Jurisdiction Division of the Council of State ruled that compensation for exceeding the reasonable time limit by the administrative body was mitigated because the claimants litigated jointly. 

The reasonable time is laid down in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). That reasonable time is exceeded if the duration of the overall proceedings is too long. The hearing of the appeal may take up to two years and the hearing of the appeal also up to two years. The reasonable time limit therefore totals 4 years. Therefore, if the entire proceedings take longer than 4 years, the reasonable time limit is exceeded. That was the case in this case. The reasonable time had been exceeded by one year, so the request for compensation was granted. 

However, the Division opted to mitigate the damages because joint litigation ensured that the degree of stress, inconvenience and uncertainty plaintiffs experienced from the over-long proceedings was mitigated as they went through the proceedings together. Ultimately, therefore, the damages of €1,000.00 were divided by the number of claimants who litigated jointly as one party, rather than paying out €1,000.00 each to all claimants. 

This ruling highlights the disadvantages that can be associated with joint litigation. Although this may initially reduce costs, it may ultimately cause you to miss out on compensation or other types of damages. Note, of course, that this ruling is only an example. This ruling involves a relatively small amount of compensation, which obviously does not outweigh the average lawyer's fees. However, there are conceivable situations where substantial damages may be involved, which can significantly exceed the lawyer's fees. 

Link ruling 

An earlier blog post dealt with the distinction between being a self-employed worker and an employee. In a recent ruling at the Amsterdam Court of Appeal, we see Deliveroo's viewpoints in action again. A dispute had arisen whether lap dances and private dance shows were performed as self-employed or as employees. There was no question of ‘self-employment’ here according to the court and the subdistrict court. 

The woman worked as an entertainment artist in a club where she performed pole dance acts and (private) lap dances, among other things. She was employed by Tempo-Team and was loaned to the club as a temporary worker. Normally, the woman worked from 8pm to 2am on weekdays and until 3am on weekends. However, the woman received pay for only four hours. The remaining hours worked were deemed to have been performed as if the woman were self-employed, with the income she received for the lap dances, for example, being regarded as ‘tips’.

First, the court noted that the woman was required to be present for six or seven hours daily. To assess whether these activities were performed in the context of an employment contract, the court applies the now well-known Deliveroo catalogue of points of view. It follows that the fact that the club drew up written instructions on, among other things, attendance, length of lap dances and approaching customers shows few characteristics of self-employment.

Furthermore, the woman was not allowed to take a break or leave the shop floor without the club's permission, was not allowed to take customers to other locations and was ‘coached’ on her sales techniques if drink sales were lagging. 

The club's claim that there was a clear separation between the work she performed as an employee and as a self-employed person was not followed by the court for these reasons. That the self-employed income was defined as ‘tips’ does not change this. In short, when all was said and done, all the hours worked fell under an employment contract.

We see in this case yet another reason to keep following our blogs. After all, according to the ‘HOUSE RULES’, the woman had to be downstairs in full make-up at 8pm. Now let us have published a blog titled: ‘CAUTION: preparation time is working time!’ on 8 October 2024. On that basis, one could argue that the time for doing make-up counts as working time, for which, in principle, the woman should also receive pay. Whether that was an issue here is not clear from the ruling, but you could make a point of it.

Click on the link for the full ruling.
If you have any questions, please contact Dennis Oud, Tessa Sipkema, Elke Hofman or Tim van Riel.

When an administrative body imposes an administrative coercion order and the citizen does not comply with the order within the specified time, the administrative body will enforce the administrative coercion. In short, this means that the administrative body will do what the citizen should have done. Think, for example, of having containers present on your (business) plot, for storing your company's own goods or for renting to third parties as storage space. If having those containers present is not permitted, they can be removed with the application of administrative coercion. You will first be given the opportunity to remove the containers yourself. If you do not do so, or do not do so in time, the administrative body will do it itself (or have it done). That is administrative coercion.  

It is also possible that administrative coercion is applied without first imposing an order. The administrative body will then, in the above example, immediately proceed to remove the containers, without first giving you a chance to remove the carport yourself. There are two variants of this: the urgent administrative order and the very urgent administrative order. With the ‘normal’ urgent administrative coercion, the you will first receive a letter that the containers will be removed, but you will not be given the opportunity to remove the carport yourself. Very urgent administrative enforcement means that you will not receive a letter in advance. The administrative order is applied immediately and thus the containers are removed immediately, without sending a letter first. 

The decision of the Administrative Law Division of the Council of State discussed in this blog involved ‘ordinary’ urgent administrative coercion. In other words, a letter had been sent, but the citizen was not given the opportunity to end the violation. The urgent administrative order in this case was for the college to confiscate a dangerous dog. The dog, Renzo, was impounded after a number of biting incidents. Renzo's owner appealed against the letter decreeing the urgent administrative order. The owner eventually litigated all the way to the Council of State, but his appeal was declared unfounded. Renzo had to be kept during the objection and appeal process, in case his owner was vindicated and got Renzo back. This ultimately did not happen, but Renzo was kept in custody for a total of almost 9 months. 

The costs of applying the administrative order and (in this case) the costs of keeping Renzo during the objection and appeal proceedings can be recovered from the citizen afterwards. After all, the college does not do so at its own expense. 

The owner of dog Renzo thought the cost charged by the college for keeping the dog was too high. The court ruled that the college had kept the dog for too long and therefore reduced the cost of custody. The court's ruling was appealed not by the college, but by the mayor. This was because the mayor argued that since the amendment to the Assen municipality's General Local Bye-Law (APV) of 21 June 2019, he is authorised to take measures against dangerous dogs, issue administrative orders and recover the costs of administrative orders. 

When the case was heard by the Division, a discussion ensued. Could the mayor recover administrative coercion costs? After all, he was not the one who had taken the decision to recover the administrative coercion costs. The Division ruled that the mayor was inadmissible. Given that it was not the mayor but the college that had taken the contested decision, the mayor was not a party to the proceedings and therefore could not be considered an administrative body. That the power to give notice of administrative coercion and collect administrative coercion costs under the APV had been transferred to him did not alter this. That power had only been transferred to him on behalf of the court after the end of the appeal period and after the decisions on the recovery of administrative coercive costs had been taken. 

An important lesson can be learned from this Divisional decision. When you are litigating against a government, it is important to always check whether the person or body within the government in question is the one who may litigate about the contested decision. As this ruling shows, this sometimes goes wrong, which is a great opportunity for you to get ahead of substantive proceedings. 

The European Court of Justice issued a very interesting ruling on Oct. 4, 2024, especially for the soccer world. The bottom line is that FIFA's current transfer system violates European rules on competition and free movement of persons.

Reason
The ball in this case started rolling in 2014 when (the now ex-footballer) Lassana Diarra broke his contract with Russia's Lokomotiv Moscow. The club did not let up and imposed a multi-million dollar fine on Diarra for breach of contract. Appealing to FIFA did not have the desired outcome for Diarra as he was ordered to pay compensation to Lokomotiv of 10 million.

That Diarra, as during his soccer career, was a biter was evident when he went to court in Belgium and demanded damages of 6 million from FIFA. In essence, Diarra took the position that like “normal” employees, he should be able to unilaterally terminate his employment contract.

Ruling

The European Court followed Diarra to some extent in stating that the current FIFA rules: 'constitute an obstacle to the free movement of professional footballers who wish to develop their activity by working for a new club'.

Possible consequences

In theory, this ruling means that footballers may already and/or in the future be able to unilaterally terminate their contracts and thus change clubs more easily. Thus, the transfer system should be changed. This would mean that depositing huge transfer fees is a thing of the past, while this is an important source of income for Dutch clubs. Whether it will go that far is unknown. Indeed, FIFA states “the legality of the key principles of the transfer system have been reaffirmed in this ruling. So the system is not being completely dismantled by the European Court. 

The case between Diarra and FIFA will continue in the Belgian court where it appears Diarra will be vindicated. If necessary, FIFA could still appeal to the Belgian Court of Appeal. You can read the summary of the case via this link. 

In short, knowledge of labor law is also relevant for the soccer fan.  If you have any questions, please contact Tessa Sipkema, Elke Hofman-Bijvank, Dennis Oud or Tim van Riel.