NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
Criminal Enforcement The expiration of the period during which criminal enforcement is possible depends on the maximum sentence of that violation. For environmental offences/ crimes, this means that the expiry period varies, but will expire 12 years after the violation at the latest. Administrative Enforcement The power to enforce an illegal situation does not “expire” after a specific period of time. In principle, administrative bodies will maintain their power to impose enforcement measures on an offender. In many cases, a new owner of a property can be quali- Please see 5.2 Liability for Historical Environmental Incidents or Damage regarding the different types of liability under Dutch law. If faced with one of these liabilities, the key defences, limits and conditions to such liability are as follows: • expiration periods in civil and criminal law ( verjar- ing ); • in the case of criminal liability, an argument that the offender did not deliberately commit the offence (in light of the distinction between infringements and crimes); fied as an offender. 5.3 Key Defences • in the case of civil liability, an argument that there is no causal relation between the unlawful act and this damage; and • in the case of administrative liability: (a) a challenge to the lawfulness of the manner in which the authority exercised its powers; (b) a challenge to the evidence of the offence or incident, including the qualification of the of- fender as such; or (c) an argument that the enforcement is dispropor- tionate to the interests that it serves. Aside from the above, the main discussions will often focus on (challenging) the relevant facts and circum- stances and the legal qualification thereof.
Thirdly, civil liability plays a role when an environmen- tal breach causes an unlawful act towards a third party – eg, in the case of harmful pollution or hindrance. Civil liability could lead to the obligation to pay dam- ages to the aggrieved party. 5.2 Liability for Historical Environmental Incidents or Damage If an order subject to penalty is imposed by an author- ity, that authority can decide that this measure will automatically apply to a possible legal successor if a legal basis for this approach is present (which is the case in the EPA, for example). As a result, the legal successor faces the risk of having to pay a penalty. In the event of soil pollution, an authority could order a party to investigate or remediate the pollution. Gener- ally speaking, this party will also carry the costs of the remediation. In most cases, this party is the owner of a polluted property or land, but it could also be the leaseholder. However, this does not have to be the party that caused the pollution. Recourse against the party that did cause the pollution may be possible on the basis of civil law or the purchase agreement. Fur- thermore, recent case law may limit the possibility for the competent authorities to enforce against a party that did not cause the pollution. As the new owner of real estate or land could still face enforcement measures, environmental topics are typically addressed as part of due diligence processes and, if needed, addressed in transaction documenta- tion either by way of warranties or specific indemnities if particular risks would be identified. Civil Liability On the basis of Article 3:310 of the Dutch Civil Code, in conjunction with Article 6:175, the expiry date for a legal claim for compensation of damages or a con- tractual fine as a result of pollution of the air, water or soil is five years. This period commences the day fol- lowing the day on which the aggrieved party became aware of (i) the damage or the enforceability of the claim and (ii) the identity of the party liable for the damage. Regardless of these conditions being ful- filled, the claim expires 30 years after the incident in any case.
324 CHAMBERS.COM
Powered by FlippingBook