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Immovable property can be expropriated in certain cases. Expropriation is a serious matter with a lot of impact. After all, by expropriating property, property rights are definitely infringed. Expropriation may not be carried out lightly and how and to what extent expropriation can be carried out is therefore regulated by law. With effect from 1 January 2024, the Environment Act was introduced. This changed the rules governing expropriation compared to before 2024. Expropriation of immovable property can only take place under conditions in the public interest of developing, using or managing the physical environment. Expropriation takes place in the name of an expropriator (Art. 11.2 Ow). Expropriator may be a municipality, a water board, a province, the State and certain other legal entities.

Expropriation no longer takes place via a ‘royal decree appointing for expropriation’ by the Crown, but via a so-called ‘expropriation order’. The expropriation order designates the immovable property to be expropriated (Art. 11.3 Ow). The expropriation order is issued by an administrative body as mentioned in Section 11.4 of the Environment Act. These are the municipal council, the general board of a water board, Provincial Councils or the responsible ministers.

The general board of a water board is thereby bound to the water board tasks formulated in the law (Art. 2.17 Ow) and may only issue an expropriation order with a view to those tasks.

Provincial States may only issue an expropriation order if the interest is a provincial interest or if it is expedient. The minister (whom it concerns) can only issue an expropriation order if the interest is a national interest or if it is expedient.

In order to expropriate, there must be an expropriation interest. It follows from the law that expropriation of immovable property can take place in the public interest (as referred to in Article 14 of the Constitution) in the public interest of developing, using or managing the physical living environment. This did change with effect from 1 January 2024. Before then, the then Expropriation Act regulated the possibility of also being able to expropriate limited rights of superficies, long leases, usufruct, etc. separately, for example. This is now no longer possible separately.

An expropriation order may only be issued in the interest of developing, using or managing the physical environment, if expropriation is necessary and if expropriation is urgent. We will discuss these criteria in a later blog.

In terms of content, the expropriation order must contain at least the following elements (Art. 7.5 Environment Decree):

• The cadastral designations of the immovable property or properties to be expropriated and the name of the municipality or municipalities where such immovable property is located;
• The cadastral size of each of the parcels of land included in the decision;
• If a portion of a parcel of land is included in the order: the size of that portion;
• The names of the owners of and the restricted parties to the immovable property or properties to be expropriated according to the basic registration of the land register;
• A description of the intended form of development, use or management of the physical environment for which the expropriation is required;
• The name of the expropriator.

The procedure to achieve expropriation is through administrative law, namely through the uniform public preparation procedure of Section 3.4 of the General Administrative Law Act. This means that the draft expropriation decision, together with the underlying documents, must be made available for inspection in the municipality where the immovable property to be expropriated is located. The submission for inspection must be announced in the official journal designated for the administrative body concerned. Subsequently, views may be submitted. Unlike in many situations where the uniform public preparation procedure applies, it is not possible for ‘anyone’ to submit views. The law states in Article 16.23(3) of the Environment Act that only interested parties can do so. The draft is also sent directly to those interested parties.

If, after weighing up the views, the administrative body ultimately does decide to adopt the expropriation order, it must request the administrative judge to ‘ratify’ the order (Article 16.93 of the Environmental Act). The filing period for such an application is six weeks, starting from the day after the expropriation order was filed and notified.

The administrative judge assesses the request, also taking into account any objections from interested parties and the administrative body’s response to those objections. Depending on the case, another written round of reply and rejoinder then follows and other parties are also given the opportunity to give their views on the case (Article 16.100 Ow). This is followed by a hearing and then, within six months of receiving the response (from the administrative body) to the objections, the court rules on the request for ratification. Or, if no objections have been submitted within six months of the expiry of the period for submitting objections.

In this blog, we will not discuss further the substantive test that the court applies to expropriations. But if the court upholds the expropriation order, the expropriation order and the court’s ruling are again made available for inspection for a period of six weeks. Thereafter, interested parties and the administrative body have the option of appealing to the Administrative Law Division of the Council of State. In this blog, we will not elaborate on the appeal procedure itself. What is important is that expropriation may not take place without compensation. But indemnification does not take place through administrative law. Compensation takes place through a separate compensation procedure. That procedure goes through civil law (civil court). In blog III, we will discuss the procedure governing compensation.

Need help and advice on expropriation issues? Please contact us.

We are proud to announce that for the next three years, we will be the new main sponsor of the Harvest Festival in Zevenhuizen! 🥳

In the sunshine ☀️ and with a glass of champagne 🥂, the sponsorship contract was signed on Tuesday, 27 February, by Gerard van der Wende and the chairman of the Harvest Festival Committee, Arie Dijkshoorn, at a very well-known location in the village. The Harvest Festival in Zevenhuizen, which attracts thousands of visitors annually, is one of the highlights of the year in Zevenhuizen and the municipality of Zuidplas. We are pleased to support this event as an involved firm.

Our firm has assembled a new team with colleagues Fleur Huisman and Petra Lindhout, specializing in the Environmental and Planning Law Act. There is a lot happening in Zevenhuizen, and environmental law itself is constantly changing. The Harvest Festival focuses on the polder and the surrounding farmlands. Therefore, we want to let you know that you can also come to our firm for matters related to environmental law or the Environmental and Planning Law Act, and we are eager to contribute actively to this wonderful event as a sponsor.

The Harvest Festival will take place this year on Saturday, 7 September, so mark the date in your calendar because this is a celebration you don’t want to miss! A day full of entertainment, cozy stalls, delicious food and drinks, music—a true village festival for everyone, from young to old!

For an employer, it is important that its employees continue to develop so that employees remain sustainably employable and employees themselves enjoy their work more. In SMEs, it is usually less common for employees to follow education or training because there is no budget or time. To encourage this, the government has made available a subsidy scheme especially for SMEs: the SLIM scheme.

This subsidy is designed to help (SME) entrepreneurs create a learning-rich working environment. In 2023, this subsidy scheme was also there, only the scheme has been renewed for 2024. The government has made 47.2 million available for this purpose. The subsidy is now also available for learning scans, which show entrepreneurs to what extent development is stimulated and where there is room for improvement. Such a scan provides a training plan tailored to your business. In addition, the application must now make clear how the learning & development method used contributes to the learning culture and how the acquisition of new knowledge and skills is embedded in the organisation.

We list the following information for you:

1. For whom. SMEs, SME partnerships and large companies from the agriculture, hospitality and recreation sectors. Specific criteria apply to each applicant;
2. When to apply? Between 1 March to 28 March 2024 and 2 September to 30 September 2024 (SMEs) or between 3 June to 31 July 2024 (joint ventures and large companies from the agriculture, catering and recreation sectors);
3. What for?

• Screening of the enterprise resulting in a training or development plan aimed at providing insight into the training need from the perspective of the enterprise;
• Obtaining career or development advice for employees in the enterprise or, in case of a partnership, for employees in other SMEs;
• Supporting and guiding in the development or implementation of an L&O method;
• Providing apprenticeships for some time for the purpose of vocational training or part of it in the third apprenticeship route at a recognised apprenticeship company;

1. How to apply? Register as an applicant via the Subsidy Portal of Implementation of Policy and make the application;
2. How much and for how long? There are deviations from the below for certain sectors.

• SMEs: max €25,000 with a duration of 12 months. The grant is for small SMEs 80% and medium-sized SMEs 60% of eligible costs (at least €5,000).
• Cooperation partnerships SMEs: max. € 500,000 and per cooperation partner max. € 200,000 with a duration of 24 months. The grant is 60% of eligible costs (minimum € 210,000).
• Large companies: max. € 200,000 with a duration of 24 months. The subsidy is 60% of eligible costs.

So be quick. If too many applications are submitted, the order of processing will be determined by drawing lots. The time of receipt of the complete grant application is decisive. Make sure you have submitted a complete application immediately so that you do not have to join the back of the queue again. You will then be notified within 18 weeks whether the grant has been awarded or rejected.

More information can be found on the website of the Ministry of Social Affairs and Employment.

Please note: you do not receive a subsidy for training costs as was the case with the STAP budget, but you do receive a subsidy for, for example, creating educational programmes or preparatory interviews. It is also possible to apply for a subsidy for the provision of a practical training place or a pathway through part-time work.

The Court of Justice issued a ruling last Tuesday that could also impact Dutch labour law.

What Happened in This Polish Case?

The case involved a Polish employee with a fixed-term employment contract. This contract was terminated early by the employer without stating the reasons for the dismissal. Under Polish law, when terminating an indefinite employment contract, the reasons for dismissal must be provided. According to the EU directive, this requirement also applies to fixed-term contracts. However, employees cannot directly invoke this directive, which led the Polish employee to argue that his employer had violated the non-discrimination principle from the EU Charter. As a result, he was unable to properly prepare his case for court because he did not know why he was dismissed. The Court of Justice subsequently ruled that this aspect of Polish labour law was not only in conflict with the EU directive but also violated a fundamental right from the EU Charter. Employees can directly invoke the EU Charter, which enshrines the fundamental right that member states must ensure effective judicial protection. In this Polish case, it meant that the Polish court ultimately had to set aside national legislation because it conflicted with the EU Charter. However, it remains to be seen how Polish judges will handle this in practice due to the significant pressure on the rule of law.

Relevance to Dutch Law

The case itself is not particularly relevant to us, as Dutch legislation requires that employers always provide reasons when terminating (mid-term) an employment contract or requesting dissolution from the subdistrict court.

Why Is This Ruling Still Important?

If this precedent extends to situations within Dutch labour law, it could mean that employees and employers can indirectly invoke directives if they are not properly implemented and thereby conflict with fundamental rights from the EU Charter. It remains to be seen how this will develop in practice, given that much is regulated at the European level.

Not particularly interesting for the average entrepreneur, but certainly for our colleagues.

Read the full judgment here.

Boards of mayor and aldermen can decide to rearrange traffic flows in a municipality in order to, for example, promote traffic flow or improve safety. The municipality then takes a so-called traffic decree that causes traffic to be handled differently at the location indicated in the decree.

However, such a traffic decision can also be detrimental to entrepreneurs who depend on good accessibility for business. The moment you, as a business owner, are adversely affected by such a decision, for instance because you are more difficult to reach, you can apply for compensation for loss.

The college must then go and see whether compensation should be offered. To this end, the college then commissions a research agency to investigate the extent of permanent damage you suffer as a business owner.

For example, a snack bar owner from Geertruidenberg was confronted with a traffic decision by the municipality in which a cut-off had been made in the traffic situation at the location, making it harder to reach the snack bar. There was no longer a through route to the snack bar for motorised traffic. In the changed situation, customers actually had to detour to reach the snack bar and would pass alternative eating places. The business owner in question was left with a permanent drop in turnover and thus damages.

This case was ultimately adjudicated by the Administrative Law Division of the Council of State, with the Division Judge clearly indicating how to deal with the calculation of loss compensation:

• In the case of annual, indefinitely recurring income losses, income losses should be capitalised in accordance with the systematics of expropriation law. By paying out a sum of money in one lump sum, the aim is to compensate for the losses that the aggrieved person will suffer in the course of future years. Capitalisation is done by multiplying the amount of the average annual net income loss by a capitalisation factor.
• A capitalisation factor of 10 is applied to calculate the owner/user’s income loss. This follows from established case law of the Administrative Law Division of the Council of State.
• At what point the damage arises is calculated using the reference date. The reference date for calculating the damage is the moment when there is actual income damage suffered and to be suffered, i.e. the moment when the traffic decision is actually realised (e.g. by a physical road closure / changed signage).
• The extent of the damage is estimated by comparing:

• The (actual) situation in which the applicant found himself as a result of the damaging decision
• The (hypothetical) situation the applicant would have been in if the damaging event had not occurred.

• When determining the extent, all the circumstances of the concrete case must be taken into account.

There is often some time between the college’s traffic decision and the actual implementation of the traffic decision. The question then arises whether – if an aggrieved entrepreneur was able to continue operating unchanged in that interim period – that affects the amount of the capitalisation factor. The Geertruidenberg municipal council thought so, the snack bar owner did not. On this, the Divisional Court said:

‘If there is income in the period located after the moment the damaging (traffic) decree came into force and before the reference date, this does not lead to an adjustment of the capitalisation factor to be applied’.

Want to read the ruling yourself? You can read the ruling here.

Are there changes in the traffic flows near your business that cause you to suffer damage and do you need help to get your disadvantage compensated? Contact us.

Many entrepreneurs know that if you want to carry out a project near Natura2000 sites, you will quickly run into an environmental permit for a Natura2000 activity. Previously, this was a permit based on the Nature Protection Act. This act was merged into the Environment Act on 1 January 2024.

But when does this constitute a Natura2000 activity? That is defined in the law. A Natura2000 activity is an activity ‘involving the realisation of a project that is not directly related to or necessary for the management of a Natura2000 site, but which, individually or in combination with other plans or projects, may have significant effects on a Natura2000 site.’

A study of the plans’ effects on the Natura2000 site will have to show whether there are ‘significant effects’. In addition, you will have to investigate whether you can exclude or prevent the adverse effects (specific duty of care). In other words, your project can only go ahead if there are no (more) significant consequences. To solve this problem, there are options for ‘netting out’.

We distinguish between internal netting and external netting. Internal netting occurs when solutions are found within the project that solve the nitrogen impact of an activity, so that there are no longer any ‘significant effects’. If the study shows this, no environmental permit is needed for a Natura2000 activity.

If internal offsetting does not work, we can see if external offsetting is possible. Whether it is possible depends on provincial policy. With external offsetting, you use the nitrogen space of another company (the company providing the balance) that terminates its nitrogen activities up to a maximum of 70%.

It is well known that, in practice, people look for ways to allow projects to go ahead without too much delay. Logically, one entrepreneur saw opportunities by making agreements with another company that it would temporarily not use its nitrogen space, so that a nature permit could be issued. But not everyone agreed, according to a Gelderland court ruling. What was at stake?

An agricultural entrepreneur had devised a construction for the expansion of his goat farm in which another private limited company (also a goat farm) would temporarily not use part of its nature permit. At least until air scrubbers were installed and the need for external offsetting was removed. The two farms concluded an agreement on taking over the nitrogen deposition balance of one in favour of the other. The mayor and aldermen agreed to this construction and granted a nature licence. A number of parties disagreed, arguing that the municipality could not simply agree to “temporarily decommission” as a change area to achieve external netting.

The court first mentioned the basic principles that have emerged in case law on external netting: if the nitrogen deposition of the new development may have a significant impact on relevant sites in a Natura2000 area, then, by limiting or terminating emissions from another, already existing activity, the deposition at those sites may result in the total deposition as a result of the desired development not leading, on balance, to an increase in deposition on the Natura2000 area.

So what needs to be assessed? According to the court, netting will always have to be determined per location of nitrogen-sensitive habitat types on the basis of the relevant emissions and spread. In other words, one should assess the increase and/or decrease in deposition on nitrogen-sensitive habitat types rather than the emissions from desired and to-be-terminated activities.

Next, previous case law of the Council of State shows that you can only offset externally if the permit for the balancing company is actually withdrawn. This may be evidenced by a revocation decision or by an agreement between the two companies on the takeover of the space released when the permit is revoked. In addition, the activities of the balance-issuing company must actually cease.

However, the court ruled that the construction devised by the entrepreneur in question (‘temporarily not using nitrogen space’) did not provide sufficient certainty. It could happen that activities could nevertheless be resumed in the interim.

Important for that judgement was that the mayor and aldermen had only included regulations in the nature permit for the balance-receiving company. If the balance-giving company did not cease its activities or restart them later, the college could not actually enforce them. This is because a civil law agreement between two companies can be terminated. Or be breached by one party. And so the college should thus have effectively revoked (whether partially or not) the nature licence of the balancing company to ensure that the conditions for external balancing were met.

You can read the ruling itself here.

As an entrepreneur, do you want to carry out projects where you encounter an environmental permit for a Natura 2000 activity and use external netting? Be well informed about the possibilities. Would you like advice and assistance in consultations with the competent authority? Then contact us.