Dutch Supreme Court: whistleblower

On February 7, 2025, the Dutch Supreme Court issued its first ruling on the Whistleblower Protection Act (Wbk). The ruling focuses on the presumption of evidence regarding the prohibition of disadvantage in the Wbk. The Supreme Court clarifies that, to rebut this presumption of evidence, the employer cannot merely rebut the causal relationship between the report and the disadvantage but must prove the opposite.

The Whistleblower Protection Act

The Wbk implements Directive (EU) 2019/1937 (“the Whistleblower Directive”) and aims to provide more protection to employees who report (suspected) wrongdoing in the workplace. Our other blog about the Wbk provides further explanation of the law.

The prohibition of disadvantage is included in Article 17e of the Wbk. This article states that a person who reports or discloses suspected wrongdoing – a whistleblower – must not suffer any disadvantage from this. When the whistleblower nevertheless experiences adverse consequences after making a report or disclosure, it is presumed that this disadvantage is the result of the report, as stated in Article 17eb of the Wbk.

It is then up to the employer to rebut this presumption. However, it was unclear how the employer should do this. Is it sufficient to merely rebut the presumption, or must the employer prove that the disadvantage is not a result of the report? The Supreme Court clarifies this in this ruling.

Background of the case

The case involved a dispute between an employee, the appellant in cassation, and the employer, the Omgevingsdienst IJsselland. The Omgevingsdienst wanted to terminate the employee’s employment agreement and went to the subdistrict court. However, the employee had previously reported suspected wrongdoing at the Omgevingsdienst, which would make the prohibition of disadvantage applicable. According to the subdistrict court, the termination request related to facts and circumstances that had occurred before the wrongdoing report, meaning the prohibition of disadvantage did not apply. Therefore, the employment agreement could be terminated by the subdistrict court.

The Court of Appeal ruled similarly, after which the employee appealed to the Supreme Court. The employee complained that the Court of Appeal failed to recognize that the Omgevingsdienst could not suffice with merely rebutting the presumption of evidence that there was a connection between the report and the termination request, and that the Omgevingsdienst should have provided proof of the contrary.

Supreme Court’s Ruling

The Supreme Court rejects this complaint. The Supreme Court considers in paragraph 4.4 that multiple passages in the legislative history of Article 17eb Wbk indicate that the legislator intended for the employer to prove that the disadvantage is not a result of the report, and that it is therefore up to them to prove that the disadvantage occurred on grounds other than the report. According to the Supreme Court, the rule of evidence laid down in Article 17eb Wbk must therefore be understood to mean that the employer cannot suffice with merely rebutting the presumption of a causal relationship between the report and the measure to counter the statutory presumption of evidence, but must prove the opposite. The fact that the term ‘ontzenuwen‘ (rebut) was used in this context in the legislative history of Article 17eb Wbk does not affect this, according to the Supreme Court.

Unfortunately for this employee, the appeal is rejected. According to the Supreme Court, the complaint was based on an incorrect reading of the contested ruling. The employee’s complaint stated that the Omgevingsdienst should have provided proof of the contrary. The Supreme Court explains that the Court of Appeal’s ruling means that the Omgevingsdienst did not merely rebut the presumption that there was a causal relationship between the report and the termination request but proved the opposite. And this is exactly what the Omgevingsdienst, according to the complaint, should have done.

Mandatory address title for online purchases: permitted or not?

When shopping online, customers are often required to choose an address title, such as “Mr” or “Ms”, prior to placing an order. The Court of Justice of the European Union recently ruled that this obligation when making an online purchase may be in breach of the General Data Protection Regulation (GDPR). What does this mean for online shops and the ordering process?

Is an address title really necessary?

This case involved SNCF Connect, a subsidiary of the French railway company SNCF that sells train and transport tickets. Customers had to provide an address title when making a purchase. French association Mousse took the matter to court, claiming that this obligation did not comply with the AVG. The complaint was initially rejected by the French data protection authority, the Commission nationale de l’informatique et des libertés (CNIL). Mousse then turned to France’s highest administrative court, which in turn referred preliminary questions to the Court.

The court then held that processing an address title for personalised communication based on gender identity is not necessary for:

  1. the performance of an agreement. Indeed, a title of address is not necessary to enable the proper performance of a rail transport agreement.
  2. the legitimate interest of the railway undertaking. SNCF Connect considered direct marketing to be a legitimate interest for requesting address titles. However, the processing of the address title must be necessary to pursue that interest, which is not the case here, partly because the processing of gender identity is not strictly necessary for commercial communications.

Data minimisation

Besides the lack of a legitimate basis, the principle of data minimisation also plays a significant role. SNCF may not process more personal data than is strictly necessary for the purpose for which it is collected. Thus, the mandatory entry of an address title without clear necessity violates this principle. In this case, SNCF Connect could easily have used inclusive forms of address unrelated to gender identity, such as “Dear Customer” or “Dear Traveller”.

What are the consequences?

The Court’s ruling has direct implications for online shops in the EU. If personal data are compulsorily requested for a certain purpose without being necessary to achieve that purpose, there is a breach of the AVG. Companies must therefore look critically at personal data that is collected. If a personal data is not necessary, it should simply not be compulsorily requested.

Tips for online retailers

What can web shops learn from this? Three practical tips:

  1. Think critically about what data you really need. In many cases, processing a name, address, e-mail address and payment information is sufficient for an online purchase.
  2. If you do want to incorporate an address title, for example to tailor the salutation of emails to the customer’s needs, make this field optional. Don’t force customers to make a choice.
  3. Have the ordering process scrutinised by a specialist to avoid violating the AVG and other rules.

Conclusion

The mandatory entry of an address title may seem like a minor detail, but without necessity it can have unwanted consequences. This ruling underlines the importance of data minimisation; personal data are only lawfully processed if the processing is necessary for the purpose to be served.

Sure if your webshop is AVG-proof? Then feel free to get in touch.

Part 7: navigating employment law: legal challenges and compliance issues

In this last part of this Dutch employment law blog sequence, we take a look at what challenges employer on occasion may encounter when operating in the Netherlands. Of course, these are mere examples. Other topics, such as illness cases, are a stand-alone challenge.

1. Understanding Employment Contracts

One of the foundational aspects of employment law is the employment contract. This legally binding document sets the terms and conditions of the employer-employee relationship. Key challenges include:

  • Ambiguities in terms: Vague language regarding roles, responsibilities, or compensation can lead to disputes.
  • Non-compliance with local laws: Contracts must adhere to regional labor laws, including minimum wage and working hours.
  • Inclusion of restrictive covenants: Clauses like non-compete agreements must be reasonable and enforceable under applicable laws.

Employers should ensure contracts are clear, compliant, and regularly reviewed by legal professionals to mitigate risks.

2. Discrimination and Harassment Claims

Workplace discrimination and harassment remain prevalent legal challenges. These issues often arise due to:

  • Unclear policies: A lack of clear anti-discrimination and harassment policies can lead to violations.
  • Ineffective training: Employees and management may not fully understand their rights and responsibilities.
  • Retaliation: Employees who report issues may face adverse actions, compounding legal exposure.

To foster compliance, organizations should implement robust policies, conduct regular training, and establish confidential reporting mechanisms.

3. Wage and hour disputes

Wage and hour compliance is a critical area that often results in disputes. Common challenges include:

  • Misclassification of employees: Mislabeling workers as independent contractors or exempt employees can lead to significant penalties.
  • Unpaid overtime: Employers must ensure accurate tracking of hours worked to avoid underpayment.
  • Failure to provide breaks: Violating mandatory break or meal period laws can result in legal claims.

Employers should conduct regular audits and maintain detailed records to ensure compliance with wage and hour laws.

4. Termination and redundancy issues

Terminating an employee’s contract can be fraught with legal risks, including:

  • Wrongful termination claims: Employers must ensure dismissals are based on legitimate reasons and follow due process.
  • Redundancy procedures: Layoffs must comply with statutory requirements, including consultation and severance pay.
  • Retaliatory termination: Dismissing employees for whistleblowing or exercising legal rights can result in significant liabilities.

Employers should seek legal counsel when handling terminations to ensure compliance and fairness.

5. Navigating leave and accommodation laws

Laws surrounding leave and workplace accommodations can be intricate. Key challenges include:

  • Non-compliance with leave laws: Employers must adhere to regulations such as the Work and Care Act (WAZO) or similar local laws.
  • Failure to provide reasonable accommodations: Neglecting to accommodate disabilities or religious practices can lead to legal action.
  • Inconsistent application of policies: Unequal treatment in granting leave or accommodations can undermine compliance efforts.

Clear policies, consistent practices, and a thorough understanding of applicable laws are essential to address these challenges.

6. Data Privacy in Employment

With the rise of digital tools in the workplace, data privacy has become a significant concern. Employers must navigate:

  • Employee monitoring: Monitoring practices must balance business interests with privacy rights.
  • Data breaches: Protecting sensitive employee information is critical to avoiding legal exposure.
  • Compliance with privacy laws: Regulations like the GDPR impose stringent requirements on handling employee data.

Organizations should establish comprehensive data privacy policies and invest in cybersecurity measures.

Final Thoughts

Employment law is a dynamic and multifaceted field that requires constant vigilance and proactive measures. Employers and HR professionals should prioritize legal compliance by staying informed about regulatory changes, seeking legal advice, and fostering a culture of transparency and fairness. By addressing these challenges head-on, organizations can not only avoid legal pitfalls but also build a more resilient and inclusive workplace. It is also noted that Works Council consultation on these different topics cannot be overlooked.

Statutory interest rate and statutory commercial interest rate to fall from 1 January 2025

From 1 January 2025, new rates of statutory interest and statutory commercial interest will apply. As from then, the statutory interest rate is 6% and the statutory commercial interest rate is 11.15%.

What is statutory (commercial) interest?

If your debtor does not pay on time, you will (potentially) suffer delay damages. For example:

  • reduced liquidity, which may prevent you from paying your own creditors;
  • having to postpone planned investments; and
  • missing out on a potential return.

The legislator has set a fixed compensation for this in the form of statutory interest and statutory commercial interest, regardless of whether the creditor has suffered damage. This avoids evidentiary uncertainties and provides clarity to creditors and debtors.

Difference between statutory interest and statutory commercial interest

Statutory interest applies to non-commercial transactions, including transactions with consumers (Article 6:119 of the Dutch Civil Code).

The statutory commercial interest rate applies to commercial transactions (Article 6:119a of the Dutch Civil Code).

New interest rates from 1 January 2025

From 1 January 2025, new lower rates of statutory interest and statutory commercial interest will apply. From 1 January 2025, the statutory interest rate will be 6%. It was 7%. As of 1 January 2025, the statutory commercial interest rate is 11.15%. That was 12.25% The new rate for statutory interest was set by Order in Council dated 10 December 2024. The new commercial interest rate automatically follows the refinancing rate set by the European Central Bank pursuant to Article 6:120(2) of the Dutch Civil Code. See also this Dutch central government website.

When is statutory (commercial) interest due?

Statutory interest is due from the day following that on which the debtor defaulted on the payment of the sum of money (See, for example, Supreme Court of the Netherlands 20 June 2014, ECLI:NL:HR:2014:1490, paras 5.1 and 5.2) until the debtor is no longer in default. Default occurs when:

You can read more about default in our 31 December 2019 blog in the Contract Law Series.

For commercial transactions – in brief – the statutory commercial interest due on account of delay in payment of a sum of money is due from the day following the day agreed as the final day for payment up to and including the day on which the debtor has paid the sum of money and, if no final day for payment has been agreed, from 30 days after the commencement of the day following that on which the debtor received the invoice.

Need help with debt collection or interest questions?

Do you have questions about legal (commercial) interest, damages or default? Or would you like support in collecting a claim? Wieringa Advocaten will be happy to help you.

Contact us today. Together, we will provide a suitable solution.

Dutch employment law in 2025: this is what’s changing

As every year, 2025 brings updates to Dutch employment law. Below is an overview of the most significant changes.

Self-Employment and the lifting of the Enforcement Moratorium (under the DBA Act)

As of January 1, 2025, the so-called enforcement moratorium is lifted, allowing the Tax Administration to resume regular enforcement of false self-employment cases. The Tax Administration’s Explanation of the Assessment of Employment Relationships (in Dutch), published on November 1, 2024, clarifies that the assessment framework will be based on facts and circumstances of the specific cases. This framework stems from the criteria established in the Deliveroo ruling. In this case, the Dutch Supreme Court identified nine indicators that may point to the existence of an employment agreement. Please be referred to our previous blog for an elaboration on this ruling.

Enforcement of false self-employment will primarily target the client or employer. On 18 December 2024, the Tax Administration has indicated that, to ensure a ‘soft landing’ in 2025, no fines for omissions and neglect or fines for an offence will be imposed in 2025. However, corrective obligations and additional tax assessments may be imposed retroactively from 1 January 2025. For the period before this date, corrections can only be made in cases of malicious intent or if a previously issued directive was not (adequately) followed.

Additionally, the model agreeements approved and provided by the Tax Administration will be phased out as of 1 January 2025. Approved agreements that are currently being used, can still be used until their expiration, but new agreements are no longer issued. Since the existence of an employment agreement must be assessed based on all facts and circumstances of a particular case, these standardised agreements no longer provide certainty about employment status. We advise reviewing current agreements with freelancers to prevent potential enforcement actions by the Tax Administration.

The 30% Ruling

In 2024, the 30% ruling — a tax scheme that allows expats to receive part of their salary tax-free — was revised. The maximum allowance of 30% over three years was adjusted to a decreasing percentage: up to 30% for the first 20 months, 20% for the next 20 months, and 10% for the final 20 months. However, this adjustment will be reversed in 2025.

The Dutch government has a different cost-saving measure in mind: the maximum tax-free allowance will decrease from 30% to 27%. This change will however not take effect until 2027.

Employee CO₂ Emissions Reporting

Employers with 100 or more employees are required to report the CO₂ emissions from their employees’ commuting and business travel. Reports for the 2024 calendar year must be submitted to the Netherlands Enterprise Agency (RVO) by 1 July 2025.

Adjustments to Unemployment Insurance Contributions and the Overtime Exceptions

Since 2020, the unemployment insurance contribution rate (WW-premium) has differed based on the type of employment contract. A higher rate applies to flexible contracts, while a lower rate applies to permanent contracts, encouraging employers to offer more permanent contracts.

As of 1 January 2025, the high premium rate will rise from 7.64% to 7.74%, and the low rate will increase from 2.64% to 2.74%. Employers must pay the higher rate for employees with a permanent contract who work over 30% more hours than agreed upon in a calendar year. However, contracts for employees working an average of 35 hours or more per week are exempt. As of 2025, this exception is expanded to contracts averaging 30 hours or more per week.

Indexations

Minimum Wage Increase:

  • Effective 1 January 2025, the minimum hourly wage for employees aged 21 and older will increase by 2.75%, from €13.68 to €14.06 per hour. Minimum youth wages (ages 15 to 21) will also rise and can be found on the Dutch government’s website.
  • The next indexation will take place on 1 July 2025. The extent of this increase is not yet determined and depends on the estimated collective labor agreement wage increase by the Netherlands Bureau for Economic Policy Analysis (CPB) and will be announced by the Ministry of Social Affairs and Employment (SZW) in the spring of 2025.

Salary Criteria for Highly Skilled Migrants:

  • In 2025, the salary thresholds for highly skilled migrants will rise by 6.7%. For those aged 30 and older, the new threshold is €5,688 (excluding holiday allowance). For those under 30, the threshold is €4,171.

Allowance for working from home and commuting

  • In 2025, the maximum tax-free homeworking allowance increases from €2.35 to €2.40 per day. The maximum tax-free commuting allowance remains €0.23 per kilometer.

Officials’ Pay Cap Increase under the Standards for Remuneration Act (WNT)

  • The general remuneration cap under the Standards for Remuneration Act (WNT) is also increasing. The WNT sets limits on the maximum remuneration for top executives in the (semi-)public sector. For 2025, the maximum remuneration has been set at €246,000, representing a 5.4% increase compared to 2024.

Increased maximum severance payment

  • The maximum transition compensation increases in 2025. This amount is adjusted annually based on contractual wage trends. In 2024 the maximum compensation was €94,000 and rises to €98,000 in 2025.

Work-related costs scheme

  • The tax-free allowance percentage under the work-related costs scheme will increase for wages up to €400,000, rising from 1.92% to 2%. For wages above €400,000, the percentage remains 1.18%.

Flavour ban on e-cigarettes upheld in court

A so-called flavour ban was added to the Dutch Tobacco and Tobacco Products Decree in 2022. This means it is prohibited to use flavour-determining additives as ingredients of nicotine-containing and non-nicotine-containing liquids for e-cigarettes.

Of the thousands of known additives, only 16 are exempted in the Ministerial Tobacco and Tobacco Products Regulation. These additives taste like tobacco or are in tobacco. And no flavour other than tobacco can be made with them. The idea is that tobacco-flavoured e-cigarettes can be used as a smoking cessation tool.

A UK tobacco goods manufacturer asked the court in The Hague to rule on the unlawfulness of the flavour ban. This ruled today (ECLI:NL:RBDHA:2024:17892).

Flavour ban or ingredient ban?

The recitals of the European Tobacco Products Directive express that the responsibility for regulating flavours of e-cigarettes remains with the member states and that the regulation of ingredients is a harmonised area. Thus, the Tobacco Products Directive does not apply to regulating flavours. Member states have more freedom in this regard.

In vain, the manufacturer is still trying to bring the flavour ban under the scope of the Tobacco Products Directive. This is because the manufacturer argues that the flavour banis shaped by a list of permitted ingredients. The court does not go along with this. The fact that the Tobacco Products Directive also lays down rules with which nicotine-containing liquids must comply does not mean that it is also the intention of the Tobacco Products Directive to harmonise the regulation of flavours. Indeed, the recitals expressly show the opposite.

Free movement of goods

One of the pillars of the European Union’s internal market is the principle of free movement of goods. This means that goods should be able to circulate in the internal market without internal borders and unjustified restrictions. The taste ban violates this.

However, not every infringement of the free movement of goods is unlawful. Article 36 TFEU allows an infringement of the free movement of goods, among other things, if the infringement is appropriate, necessary and proportionate. The latter means that the infringement is necessary to achieve the stated objective (of general interest) and that this objective cannot be achieved by measures less restrictive of the free movement of goods.

Taste ban necessary and appropriate

The court ruled that the necessity and appropriateness of the flavour ban have been sufficiently demonstrated by the State. E-cigarettes are harmful to (public) health. Only the degree of harmfulness is still subject to (some) scientific uncertainty. The attractiveness of flavours to young people is also sufficiently established. One study shows that flavours are an important reason for young people to try e-cigarettes. Another study shows that flavours reduce the perception of harm.

The manufacturer’s objections are of insufficient weight. For instance, according to the court, there is no unequivocal evidence that e-cigarettes (with flavours) are an effective means of quitting smoking. In any case, the effectiveness of e-cigarettes as a quitting tool is lower than other aids.

Taste ban proportionate

Against the extensive analysis of the appropriateness and necessity of the flavour ban, the court’s assessment of the proportionality of the flavour ban nevertheless compares rather poorly. The manufacturer had argued that less drastic measures with the same effect as the flavour ban were also conceivable. The manufacturer had pointed, among other things, to exclusive sales in speciality shops, a ban on mentioning appealing to young people on packaging, providing information to young people and intensifying supervision aimed at preventing sales to young people.

The court considered that the State does not have to prove that the protection of public health cannot be achieved by other conceivable measures. Therefore, according to the court, the State does not have to rebut the efficacy of all conceivable measures.

Surely, the court is shortchanging itself here. It follows, for example, from the CJEU ruling on Scotch Whisky Association(ECLI:EU:C:2015:845) that a national court must assess objectively whether the evidence presented by the Member State concerned could reasonably lead it to consider that the means chosen are appropriate to achieve the objectives pursued, and whether those objectives could also be achieved by measures less restrictive of the free movement of goods. And it follows from the CJEU judgment Commission v Spain(ECLI:EU:C:2011:172) that a Member State must attach an analysis of the appropriateness and proportionality of the restrictive measure it adopts to the reasons it invokes to justify a derogation from the principle of freedom of establishment, and must substantiate its argument with precise data.

Cutting corners

The taste ban has not been reviewed for proportionality as intrusively as might be expected. As a result, the final judgment – that the flavour ban is not unlawful – is not convincing.

Amsterdam canal cruise volume policy unlawful according to Council of State

In a ruling (ECLI:NL:RVS:2024:3732), the Administrative Law Division of the Council of State ruled that the municipality of Amsterdam’s new policy for passenger shipping on Amsterdam’s inland waterways violates the Services Directive. The municipality of Amsterdam will therefore (as in 2017) have to go back to the drawing board. Wieringa Advocaten was involved in this case on behalf of Rederij Lovers.

Volume policy for passenger shipping

With effect from March 2024, Amsterdam’s municipal executive established a so-called volume policy for passenger shipping in Amsterdam. Briefly, this set the maximum number of operating licences for passenger shipping at 550.

Under the Services Directive, such ‘scarce licences’ cannot be granted indefinitely. Otherwise, potential applicants would de facto be barred from entering the market. Because of the volume policy, college would in future be allowed to grant operating licences only for a fixed period. At the end of this fixed period, the operating licences that become available would be distributed among potential applicants.

The Amsterdam college considered that Amsterdam shipowners’ operating licences, which had been granted for an indefinite period of time, interfered with the volume policy. So it revoked the operating licences of all Amsterdam passenger shipping. In 2022, a first part of these licences was redistributed among potential candidates.

A major blow for the Amsterdam shipowners. They did not leave it at that and went to the administrative court.

Services Directive

The Services Directive (Directive 2006/123/EC) aims to ensure the free movement of services and freedom of establishment. That is, there is an internal market within the European Union in the sense of an area without internal borders whereby Member States allow service providers originating from other Member States into their own territory. Restrictions on this (such as authorisation schemes) are only justified if they are non-discriminatory, necessary and proportionate.

In the Services Directive review, things went south for the Amsterdam municipality.

Compelling reason of public interest

Central to the debate on the presence of compelling reasons of public interest was the college’s assertion that liveability in Amsterdam is under pressure. The college wanted the volume policy to prevent the already existing nuisance from increasing further.

However, the Division held that all the research reports submitted by the college did not show that passenger shipping was partly responsible for some of the nuisance experienced by residents in the city. Thus, the college had not proved that passenger shipping partly weighs on the liveability of the city. The survey reports mainly show that the nuisance comes from pleasure and illegal passenger shipping, with residents experiencing nuisance from screaming boaters, excessive drinking and excessively loud music, among others.

Moreover, the college wants a balance between facilities for residents and facilities for tourists, but according to the Division, nowhere does it show that the supply for passenger shipping and facilities for residents is out of balance.

Proportionality of volume policy

However, the Division does consider that the board has sufficiently demonstrated that the interests of smooth and safe passage and the fair distribution of available space are at stake. These interests can therefore serve as justification for the volume policy.

However, the college had not sufficiently substantiated that these interests are coherently and systematically pursued. Indeed, the college had not demonstrated it also takes sufficient measures aimed at other users of the canals. For example, by also placing restrictions on the use of Amsterdam’s canals by pleasure boats.

Effects of the ruling

Amsterdam shipowners can breathe a sigh of relief for now; their indefinite operating licences are revived. The college will have to go back to the drawing board for new policies.

The Lex Silencio Positivo, Environment Act and the Services Directive

It is widely reported that the Dutch legislator has abolished the so-called Lex Silencio Positivo (LSP) in the Environment Act. The Services Directive means that that message may still be somewhat premature.

Difference Lex Silencio Positivo under the Awb and the Services Directive

In our national law, the Lex Silencio Positivo is regulated in general terms in section .4.1.3.3 of the Awb (General administrative law act). Section 4:20b Awb provides that a requested decision is granted automatically if the application for a decision is not decided on in time. This is deemed to be a decision that takes effect three days after the decision period has expired. Section 4:20a of the Awb contains an important restriction: the Lex Silencio Positivo only applies if this has been determined by statutory provision. The applicability of the Lex Silencio Positivo therefore requires an explicit decision by the legislative body.

In the European Services Directive, this is just the opposite. Indeed, it follows from Article 13(4) that the Lex Silencio Positivo applies unless justified by overriding reasons of public interest, including a legitimate interest of a third party. Thus, to authorisation schemes that fall under the Services Directive, the Lex Silencio Positivo applies unless otherwise provided by statutory provision. There must be a good reason for this.

Lex Silencio Positivo abolished in the Environment Act?

In the Explanatory Memorandum(Parliamentary Papers II 2013/14, 33 962, no. 3), the Minister of Infrastructure and the Environment describes that the Lex Silencio Positivo brings complications in light of a number of innovations envisaged by the Environment Act. According to the minister, these include the more far-reaching integration of consents in the single permit in combination with bringing more single permits under the regular preparation procedure. In addition, the Lex Silencio Positivo does not fit well with the greater discretion that will be given to administrative bodies for assessing applications for environmental permits. When assessing permit applications, tailor-made solutions will therefore be necessary, and environmental permits will hardly have any standard regulations attached to them. Moreover, application of the Lex Silencio Positivo creates problems when it comes to the allocation of functions to locations by the national and provincial governments.

Abolition of Lex Silencio Positivo in the Environment Act justified?

In the Explanatory Memorandum, the minister acknowledges that environmental permits integrate consents that in part qualify as a permit covered by the Services Directive.

For some of these environmental permits, the Water Framework Directive already provides that the Lex Silencio Positivo does not apply. For another part of these environmental permits, the Mer Directive or the Industrial Emissions Directive requires a prior substantive assessment of the permit application or permit requirements.

On other environmental permits, the Minister stated that exclusion of the Lex Silencio Positivo is justified due to compelling reasons of public interest. These are:

  • the environmental permit for the fire-safe use activity;
  • the environmental permit to deviate from all rules in the environmental plan;
  • the environmental permit for the environmentally harmful activity for which although no substantive assessment is required under European law;
  • the environmental permit for mining activities;
  • The environmental permit for the Natura 2000 activity;
  • the environmental permit for the flora and fauna activity;
  • the environmental permit for activities for which the water board ordinance prohibits carrying out an activity without an environmental permit;
  • the provincial environmental regulation;

Case law on the Environment Act will have to show whether case law considers the minister’s justification sufficient.

The Lex Silencio Positivo and (deviating from) the environmental plan

In particular, the environmental permit to deviate from all rules in the environmental plan is an interesting one. The minister considers that the generic possibility offered to apply for a permit to deviate from all rules in an environmental plan requires a prior assessment of the application on the risks of this for the physical living environment. Among other things, the minister points to the risks to spatial planning, the environment or safety, whereby the competent authority must weigh up different interests and where customisation is required. According to the Minister, application of the lex silencio positivo entails the risk of granting an environmental permit that leads to irreparable damage to the physical living environment.

The justification for excluding the Lex Silencio Positivo is thus a particularly general one. All the more so given the ongoing debate on what kind of permit systems can be included in an environmental plan. Municipalities are given until 2032 to incorporate rules in municipal regulations that deal with the physical living environment into the environment plan. However, it is not always clear whether a municipal permit system is about the physical living environment. Consider, for example, the permit systems for events and catering establishments in APV. It is not said that the justification given by the Minister in the Explanatory Memorandum is sufficiently valid for all conceivable permit systems in environmental plans.

In short: despite the news that the Lex Silencio Positivo has been abolished in the Environment Act, it is still important to be critical. Especially in the case of permit systems for services in environmental plans, it may pay to question the exclusion of the Lex Silencio Positivo. Who knows, it might result in a permit granted by operation of law.

The external regulatory authorities

External regulatory authorities can influence the composition of a company’s board, decision-making in the company and the functioning of the company’s board in various ways. The extent to which external regulatory authorities have this influence depends on the laws and regulations applicable to the relevant company. Often, the influence of external regulatory authorities in specific sectors is detailed in sectoral governance codes. Companies applying these codes take into account the influence of their external regulatory authorities as a matter of course.

As part of the Corporate Governance blog series, in this blog we look at two examples of how an external regulatory authority can influence the functioning of a company.

Influence on information, decision-making and functioning of the board

For the board of a company to perform its duties properly, it is important that it receives the necessary information. External supervisors can play an important role in providing the management board with such information. Examples include information on the company’s financial condition.

A large company is obliged to have its financial statements audited by an external auditor every year (Article 2:393(1) of the Civil Code). The Corporate Governance Code requires the board of a listed company to have regular contact with the external auditor.

The auditor shall audit whether the company complies with the statutory requirements in respect of the financial statements, the management report and all related matters. After his audit, the auditor shall report to the Management Board and the Supervisory Board. The result of the auditor’s examination shall be reflected in a report which shall be included among the other information in the financial statements and shall thereafter be provided to the general meeting.

Vice versa, of course, it also applies: the board should ensure that an auditor has timely access to all the necessary information to perform his assignment.

Influence on the composition of the board

The composition of the board can also be influenced by external regulatory authorities. For instance, the Dutch Financial Markets Authority, The Dutch Central Bank and the Housing Corporation Authority assess the reliability and suitability of policymakers, such as directors, at a company. These audits of public-interest entities, enshrined in various laws (Wft, Wta and the Housing Act) and policy rules (e.g. the Policy on Suitability 2012, the Policy Wta and the Policy Housing Corporations Authority 2024), often stem from the idea that there is a strong public interest in guaranteeing the quality of statutory audits that these organisations are required to conduct.

By testing directors for suitability, the board will in practice only be composed of directors who the relevant external regulator deems suitable as directors. Within this framework, the supervisory authorities Authority for the Financial Markets and De Nederlandsche Bank also test whether the directors complement each other collectively and expressly take into account the importance of diversity, whereby persons who do not have a distinct background in the financial sector can also successfully pass the test, as long as they bring with them a specific expertise that is still lacking. So these supervisors also have a say in the matter when it comes to diversity.

Wieringa Advocaten

Would you like to know specifically what the impact of external supervisors is in your case? Then feel free to contact us for tailored advice.

Employment law in NL: Part 6 Collective Labor Agreements (CLAs)

Understanding Collective Labour Agreements in the Netherlands

The Dutch labour market is regulated by various legal frameworks designed to ensure fair treatment, decent wages, and good working conditions. Among these frameworks, collective labour agreements (collectieve arbeidsovereenkomsten or CAOs) play a crucial role. In this blog I will explain in a short overview what a CLA entails.

What is a Collective Labour Agreement (CLA)?

A CLA is a written agreement between employers (or employer organizations) and employee unions. It sets out employment terms such as wages, working hours, holiday allowances, pension contributions, and other job-related benefits. These agreements apply to specific industries, sectors, or even individual companies.

How are CLAs negotiated?

Negotiating a CLA involves collective bargaining between employers’ associations and trade unions. Both parties meet periodically to discuss employment conditions and reach a mutually acceptable agreement. Once signed, the CAO becomes binding for all employers and employees within the scope of the agreement.

Types of CLAs in the Netherlands

There are two primary types of CLAs:

  1. Sector-Specific CLAs: These cover an entire industry or sector, such as healthcare, retail, or construction. Employers within the sector can be bound to apply this CLA through different methods as explained below.
  2. Company-Specific CLAs: These apply to a single company or organization. Large corporations often negotiate their own CLAs directly with unions.

Legal Framework and Binding Nature

In the Netherlands, CLAs can be declared legally binding by the Ministry of Social Affairs and Employment. This declaration ensures that all employers within a specific sector must adhere to the CLA, even if they are not members of the negotiating employer’s association.

Alternatively, CLAs can apply if the employer is a member of the employers’ association who agreed upon a CLA with the unions. Furthermore, CLAs can apply if the employer incorporated its applicability into the employees’ employment agreements.

Key Elements of a CLA

Typical provisions found in a CLA include:

  • Wages and Salary Increments: Minimum pay and scheduled raises.
  • Working Hours: Standard working hours and permissible overtime.
  • Leave and Holidays: Annual leave, maternity/paternity leave, and sick leave policies.
  • Pensions and Insurance: Contributions to pension funds and insurance coverage.
  • Health and Safety Standards: Measures to ensure workplace safety.

Why Are CLAs Important?

For employees, Clas guarantee fair employment conditions, job security, and protection against arbitrary changes in work terms. For employers, they provide clear guidelines and help prevent labour disputes (although currently there are a lot of disputes between employers and unions e.g. on wage increases). Moreover, CLAs contribute to industrial peace and a stable labour market.

Conclusion

Collective labour agreements are in some sectors a cornerstone of employment relations. The intention is that they promote fairness and stability by ensuring that employees receive equitable working conditions while giving employers clear regulatory frameworks to follow. Understanding the CLA system helps both employees and employers navigate the Dutch labour market effectively and maintain a harmonious working environment.