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In this blog series, we discuss the main aspects of expropriation law.

In the first blog of this expropriation special, we covered the change from a Crown decision to an expropriation order and the associated legal protections. This blog also outlined who can fall under the definition of 'expropriator.' According to Article 11.2 of the Expropriation Act (Ow), these include the municipality, the water board, the province, the state, and certain other legal entities.

In this second special blog on expropriation, we will outline the criteria for expropriation.

To expropriate land, expropriators must submit a request to the administrative court to obtain approval (ratification) of the expropriation order.

The administrative court will, in addition to checking compliance with all formal requirements, conduct a basic review as provided in Article 11.5 of the Environmental Act. This article includes the criteria an expropriation order must meet. The expropriation order can only be approved if:

1. It is in the interest of developing, using, or managing the physical living environment,
2. Expropriation is necessary, and
3. Expropriation is urgent.

Below, we discuss these criteria in detail.

Expropriation Interest

According to Article 11.6 of the Environmental Act, an expropriation interest exists only if the intended development, use, or management of the physical living environment is enabled by an established environmental plan, a granted environmental permit for an out-of-plan environmental plan activity, or an established project decision.

In short, the intended development, use, or management of the physical living environment (for which expropriation is needed) must have a basis in one of the above-mentioned legal instruments.

However, an additional criterion applies to the environmental plan. The plan must specify the form of development, use, or management of the physical living environment that should be realized in the public interest. This prevents authorities from expropriating based on an environmental plan that offers such diverse building and use options that it is unclear which construction, use, or management should be realized in the public interest.

Therefore, the environmental plan must include a specification showing that the intended form of development, use, or management of the physical living environment aligns with the public interest.

Moreover, the use of all three legal instruments requires that they be established before the expropriation order can be issued. Referring to a draft environmental plan is insufficient.

Necessity

According to Article 11.7 of the Environmental Act, expropriation is not necessary if:

• The expropriator has not made a reasonable attempt to amicably acquire the property. A reasonable attempt involves serious negotiations.
• The expropriator has not made a reasonable attempt to reach an agreement with the property owner regarding the cancellation of property or personal rights. What constitutes a reasonable attempt depends on the specific circumstances.
• It is likely that an agreement on amicable acquisition will be reached shortly, and the property will be transferred soon after. An offer must be made that relates to the property.
• It is likely that an agreement on the cancellation of property or personal rights will be reached shortly, and the rights will be cancelled soon after. If there are other right holders besides the owner, and the owner cannot deliver the property free of encumbrances and rights, the expropriator must also negotiate with those other right holders.

Additionally, expropriation is not necessary if:

• The property owner can and wants to realize the intended form of development, use, or management of the physical living environment,
• He has intentions to do so and has made this known to the competent authority, and
• The intended form of development, use, or management of the physical living environment will be realized in the way the competent authority desires.

It is not sufficient for the owner to merely state his intention to execute the plan himself. He must demonstrate that he can actually do so in the manner desired by the expropriator and that he has concrete plans, which he has shared with the expropriator. The owner cannot avoid expropriation by simply claiming he will implement the plan. He must have real and executable plans.

In addition to the general necessity requirement in Article 11.7 Ow, Articles 11.8 to 11.10 Ow discuss more specific cases where expropriation is deemed necessary. These criteria apply in addition to those in Article 11.7 Ow.

The specific situations include:

• Necessary expropriation for public order (Article 11.8 Ow). Maintaining public order around a building may necessitate its expropriation. This is only possible if less intrusive measures are insufficient.
• Necessary expropriation under the Opium Act (Article 11.9 Ow). Again, this is only possible if less intrusive measures are insufficient.
• Necessary expropriation for liveability, health, and safety (Article 11.10 Ow). This is also only possible if less intrusive measures are insufficient.

Urgency

The urgency of expropriation is discussed in Article 11.11 of the Environmental Act. It states that urgency exists if it is likely that the development, use, or management of the physical living environment for which expropriation is necessary must begin within three years after the expropriation deed is registered.

Government agencies can demonstrate this by presenting concrete project plans and schedules.

Conclusion

In summary, expropriation can only occur if the plan for which expropriation is needed is enabled by one of the three legal instruments, is necessary for the intended development, use, and management of the physical living environment, and if there is urgency.

An expropriation interest exists if the plan is enabled by an established environmental plan or project decision or a granted environmental permit for an out-of-plan environmental plan activity.

Expropriation is necessary if amicable acquisition of the property free of property or personal rights has proven impossible and will likely remain so. Additionally, the current property owner must not be able or willing to realize the intended form of development, use, or management of the physical living environment himself.

To qualify as an urgent expropriation, the expropriator must begin realizing the plan or project within three years after expropriation.

All in all, expropriation is subject to numerous criteria because property ownership is one of the most fundamental human rights. Government agencies cannot arbitrarily expropriate properties to realize their plans unless expropriation is necessary, urgent, and enabled by a legal instrument.

In recent years, more and more employers are putting the non-competition clause as a standard clause in the employment contract. We too often recommend including a competition and/or relation clause in the employment contract. Especially in highly competitive markets, such as in recruitment or sales positions.

A study in 2021 found that employers include a competition or relation clause even when there is no need or reason to do so. This causes employees to be restricted in their free choice of employment. As a result of this research, a draft bill has emerged to curb the non-competition clause. And not so little too. These restrictions will be quite severe.

The Council of Ministers has approved the Bill on Modernisation of Non-competition Agreements and the proposal has been open for internet consultation since 4 March 2024. It will tighten the rules governing the non-compete clause.

In short, it comes down to the fact that an employer will soon be allowed to invoke the non-competition clause up to a maximum of 1 year after the end of the employment contract and that, in order to do so, an employer must pay the employee 50% of the monthly salary each month for every month he invokes the clause. Do you want to keep the employee to the maximum term of 1 year? Then you actually have to pay six months’ salary at the end date! The internet consultation already raised many questions about possible abuse by calculating ex-employees.

The following changes are now in the bill:

• a non-competition clause can have effect for a maximum of 1 year after the end of the employment contract
• the employer must justify the duration of the non-competition clause in writing (is already done now)
• the employer must motivate the geographical scope in writing (is usually already done);
• the overriding business or service interest for a non-competition clause must be justified in writing for all employment contracts (so not only for temporary employment contracts, as is currently the case) and if that justification changes (because of job changes, e.g.), then this must be amended to which the employee must then again give consent;
• an employer must indicate immediately at the time of termination or in the event of termination by operation of law no later than one month before the end of the employment contract whether the non-competition clause will be invoked and for how long (there are exceptions, e.g. in the event of summary dismissal or dissolution by the subdistrict court);
• the employer must pay the employee compensation if the non-competition clause is invoked. The compensation is 50% of the last-earned monthly salary, for each month the non-competition clause is invoked. There is no cap on the salary. The payment must be made immediately on the termination date. There are also exceptions to this in case of summary dismissal or dissolution. Do you not pay on time? Then you may no longer invoke the non-competition clause, but employer must still pay;
• Does the employee violate the invoked non-competition clause? Then the compensation counts as an undue payment and the employee must repay it. The employer can also invoke a penalty clause provided it has been agreed in the employment contract (or settlement agreement);
• in a settlement agreement, you can deviate from the compensation obligation and invocation obligation.

Under the new bill, the non-competition clause will only apply after the end of the employment contract if the employer invokes the clause in writing and in good time and if the employer owes compensation. Is the clause invoked a day late or the compensation paid a day late? Then it is unfortunate but unfortunate. The employee can then join the biggest competitor and may keep the compensation if it has already been paid.

Competition clauses validly agreed before the bill comes into force will remain valid. However, an employer will have to pay the compensation if the employee is held to the clause.

The above would also apply to relation clauses that prevent employees from working for or with the employers’ relations, such as customers and clients.

Although the proposal still has to pass the Lower and Upper Houses first, the bill is expected to take effect as early as 1 January 2025.

As far as we are concerned, this bill goes too far with regard to the compensation obligation and calculating employees can easily abuse this regulation. Why?

Suppose an employee terminates on the last day of the month, the employer has to think that same day about whether to invoke the non-competition and/or non-solicitation clause. Employers then come under pressure and the question is whether the right decision is then taken. Especially if employees indicate (possibly wrongly) that they want to join the competitor. For instance, employees can easily take a paid holiday of (at most) six months and quietly look for a job with a non-competitor. The question is whether, as an employer, you can then invoke cheating and want to start (costly) proceedings for this to recover the compensation. And does the employer have to pay double compensation if it wants to invoke both the non-compete and relationship clauses?

Action employer for now?

Wait a little longer until it is clear whether the bill will be implemented in its current form, and then adjust the current models of employment contracts and settlement agreements for competition and relation clauses. In exceptional cases, anti-solicitation clauses may possibly also fall under these stricter rules.

Questions? Please contact one of our Employment Law attorneys Dennis Oud, Elke Hofman or Tessa Sipkema.

Our colleague Petra Lindhout wrote the following annotation for the journal Milieu & Recht (2024/23) on a ruling by the Zeeland-West-Brabant District Court. Download the publication here.

For any questions, please contact our Environmental Law specialists.

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.