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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.

In practice, we find that not yet every business owner has their terms of employment arrangements and everything that comes with HR in order. What have the latest changes been and what changes are still to come?

What should you already have in place according to the law?

• Have you already updated all employment contract models to the latest legislation? This should mean that after 1 August 2022, you will have updated all models to the information obligations that follow from the Transparent and Predictable Terms of Employment Act;
• • Study cost arrangements have been adjusted following the Transparent and Predictable Terms of Employment Act. It is no longer possible to simply agree a reimbursement arrangement of study costs with the employee. Take another look at those arrangements;
• A mandatory whistleblower scheme applies to at least 50 employees as of 23 December 2023. Note that temporary workers, trainees and volunteers also count in that ’50 employees’, provided they receive compensation for their work. As of 18 February 2023, this obligation already applied to employers with at least 250 employees;
• Do your employees receive minimum wages? If so, those wages were increased and converted into statutory minimum hourly wages from 1 January 2024. Under previous legislation, it was found that in practice an employee working 40 hours a week had a lower minimum hourly wage than the employee working 36 hours a week. This has now been equalised and wages indexed by 3.75% from 1 January 2024;
• The maximum untaxed travel allowance in 2024 is €0.23 per kilometre and the untaxed home working allowance in 2024 is €2.35 per day;
• If you have an employee who is unfit for work for more than 6 weeks, from 1 July 2023 the employee must also give his/her views in the plan of approach and its (first-year) evaluations and adjustments. A worker entitled to a state pension no longer has to be paid for 13 weeks but 6 weeks in case of illness since 1 July 2023;
• Children under 16 are no longer allowed to work as flash delivery drivers since last November. Child labour rules have also been tightened further. So pay attention to that;
• The entry age for pension accrual has been lowered from 21 to 18 with the advent of the new Future Pensions Act. Has this already been communicated to your young employees who were not yet covered by a pension scheme due to their age?

What’s coming up in 2024? 

• The mobility CO2 registration requirement will apply from 1 July 2024 to employers with more than 100 employees. Here, seconded and temporary workers do not count. In practice, this means that all kilometres, broken down by commuting and business, must be registered by means of transport (car, public transport, bicycle, scooter, etc.) and fuel type.
• There will be new legislation that should provide more clarity for self-employed workers and employers. This legislation will be important in determining whether someone is a self-employed person or a salaried employee. Following the Deliveroo ruling on 24 March 2023, the Tax Office has already withdrawn model agreements based on free substitution from 1 January 2024. This is because the Supreme Court has said that free replacement can indeed constitute an employment contract. Are you still using these model agreements? If so, adjust them as soon as possible. Also keep a close eye on whether the freelancer actually performs the work independently and without direction and supervision to prevent the agreement between you from unintentionally qualifying as an employment contract or pseudo self-employment. In doubt? Then get in touch or check out our previous blogs.
• The laws and regulations on child labour would not currently adequately accommodate new forms of work by children, such as vlogging and influencing. These regulations are being modernised, clarified and tightened, with the starting point being child protection, while also looking at the positive aspects of work for children.
• Employers with at least 10 employees may soon be required to appoint a confidential advisor. The bill is before the Senate. In practice, we find that judges also ask about this in (rising) undesirable behaviour cases. We therefore recommend – regardless of the date of entry into force of this law – appointing an external confidential advisor now;
• All employers will soon have to have a working method, in which the employer states how it handles recruitment and prevents prohibited discrimination (discrimination). Employers with more than 25 employees must also put the operating procedure in writing. The Inspectorate will have the power to carry out inspections and impose fines. The bill is before the Senate.

Questions about these changes? Or do you need help adapting or drafting model agreements and regulations? If so, please contact Dennis Oud, Elke Hofman or Tessa Sipkema. 

A few months ago, a blog was devoted to the participation procedure under the laws and regulations that applied until 1 January 2024. Under this system of law, there was an obligation of effort, but (all) wishes of local residents did not have to be met. This blog will discuss participation under the Environment Act.

First, a brief recap of the concept of participation. Participation means that the government or initiators who want to realise something in the physical environment must actively involve citizens, businesses, civil society organisations and administrative bodies in the preparation of the project. In this way, the parties involved in the participation can share their wishes and concerns already in the preparation phase, so that the initiator or the government can possibly take them into account.

Participation by public authorities

The participation procedure for project decisions differs from the participation procedure described in the Environment Decree. Therefore, this blog does not cover project decision participation. In short, project decisions are used for complex projects with a public interest, such as building a motorway or reinforcing a primary flood defence system.

For public authorities and initiators, regulations regarding participation are spread across the Environment Decree, the Environment Act and the Environment Regulation.  The Omgevingsbesluit stipulates that, when preparing the omgevingsplan, regulations, omgevingsvisies and programmes, governments must indicate “how citizens, businesses, civil society organisations and administrative bodies have been involved in the preparation and what the results are. In addition, (decentralised) authorities must indicate how they have included applicable participation policies in the participation procedure.

As you may already notice, governments are only obliged to carry out participation. However, they are not obliged to implement the results of the participation procedure in such a way that all wishes expressed during this procedure are actually realised in the environmental plan, regulations, environmental visions and programmes. Thus, there is no so-called obligation of result, but there is an obligation of justification. Governments must indicate how they have included citizens, businesses, civil society organisations and administrative bodies in the preparations and what the results are.

Last year, we wrote about the landmark Deliveroo judgment and the consequences the ruling has for self-employed and other workers. That the ruling has truly far-reaching consequences is shown by the following case.

Recently, the court had to answer the question whether depot owners of DPG Media (NRC and Het Parool) have a contract of assignment or an employment contract. DPG Media uses depot holders to distribute newspapers. In 2020, DPG Media transferred the distribution of its newspapers to Mediahuis. Mediahuis, in turn, entered into agreements with all the depot holders, so the depot holders were effectively in charge of distributing the newspaper.

A year later, as Mediahuis had terminated a depot holder’s agreement, this man went to the subdistrict court asking whether he now had a contract of assignment or an employment contract. The subdistrict court applied the Deliveroo judgment and indeed came to a contract of employment. Both parties appealed from this ruling. ⚖

The Court of Appeal also qualified the agreement as an employment contract and came to that conclusion based on the Deliveroo judgment. According to the Court, there is pay, labour and a relationship of authority between the parties. Mediahuis had direct influence over the depot holder by arranging administrative matters for him and Mediahuis also instructed the depot holder on several points that the depot holder had to follow. Also, the depot holder could not in fact be replaced, he also had no clients other than Mediahuis and was not at financial risk. In fact, the custodian was not an entrepreneur, but fully embedded in the organisation of Mediahuis.

What is interesting is that the tax authorities and the UWV saw the construction as merely “fictitious employment” and not an employment contract. Nevertheless, the court ruled that under civil law, there was still an employment contract. Therefore, if you as a client enter into an agreement with a contractor, you should really check whether it is not secretly an employment contract after all, regardless of what the tax authorities or the UWV think. If you are in doubt contact us.

Read the ruling here!