The Relativity of Statutory Provisions
Under Dutch law, like German or English law, the violation of a statutory provision does not establish civil liability for damage caused to another person. Such liability requires that the statutory provision concerned aims to protect against the damage or, put differently, that the harmed interest of the plaintiff is within the so-called protective scope of the violated statutory provision. This requirement for liability is known as the Schutznorm requirement or relativité aquilienne and (in Dutch) as the requirement of relativiteit. A related concept of the protective scope of statutory provisions is present in the case law of the Court of Justice of the EU, such as the Leth and Kone cases.
- Wouter den Hollander
- 23 June 2016
- Leiden University Repository
Courts versus legislator
But how should the courts determine the protective scope of a statutory provision? The problem is that the legislator rarely provides clues in the text and legislative history of statutes. More often than not, the courts have to decide for themselves. At the same time, at least in the literature on the case law of the Dutch Supreme Court, the question has arisen on whether, and to what extent, the courts should actually make the 'political' choices that come with the determining of the protective scope of a statutory provision, even if the legislator is silent on the issue.
Case law under fire
The Dutch Supreme Court has been criticised for more or less 'secretly' making choices in its decisions on the protective scope of statutory provisions that should have been left to the legislator. For example, when the Dutch Supreme Court decided that the damage caused by the sinking of a ship that was wrongfully certified by public authorities and admitted to shipping traffic was not within the protective scope of the statutory provisions on the certification of ships. Public authorities were therefore not liable. Another example can be seen in a case between private parties, when the Dutch Supreme Court decided that the damage caused by a crumbling pillar to the co-proprietor of that pillar was within the protective scope of a statutory provision in the Dutch Civil Code on strict liability of proprietors. By that, the Dutch Supreme Court enabled mutual liability between co-proprietors of the same pillar.
A two-step model
While the Dutch Supreme Court has thus been criticised, other authors point out that it does exactly what the concept of the protective scope is meant for: to put limits on civil liability. In his thesis, against this background, Wouter den Hollander develops a two-step model for determining the protective scope of a statutory provision, from the perspective of the relationship between court and legislator. Subsequently, Den Hollander uses this model to scrutinise the case law of the Dutch Supreme Court to see whether the criticism is warranted or not.