NETHERLANDS Law and Practice Contributed by: Eva Schothorst-Gransier, Claims Made Advocatuur
Intervention Policy 2024 of the NVWA (that applies as of 13 January 2024), include, amongst others: • an official warning; • corrective measures, such as a product recall; • an administrative fine or criminal penalty;
A well-known Dutch retail company selling private- label power banks with a risk of explosion was fined EUR871,590 in total by the NVWA for: • unlawfully selling dangerous power banks; • failure to take adequate measures to prevent the risk, such as investigating the cause of potential explosions; and • non-compliance with the duty to immediately notify the NVWA after becoming aware of the risk. For each of these alleged non-compliances, a stand - ard fine of EUR1,590 was applied at the time, though for breaches (i) and (iii), the NVWA had applied the administrative fine related to the annual turnover, so 2x EUR435,000, stating gross negligence. According to the Rotterdam District Court, a fine of EUR870,000 was rightfully imposed for breach (i) and (iii). The Court did follow the retailer’s objection against a fine of EUR1,590 for the alleged breach (ii). Due to a breach of the reasonable time requirement, the total fine was reduced to EUR795,000 (Rotterdam District Court 18 July 2024, ECLI:NL:RBROT:2024:6624). 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law In the Netherlands, the causes of action for product liability are based on the Dutch Civil Code (DCC). Strict Liability Article 6:185 of the DCC includes the lex specialis. Based on this article, a manufacturer can be held liable for damages resulting from a defective prod - uct. This strict liability applies only to cases involving death, personal injury or property damage caused by the defective product to another item intended for pri - vate use or consumption. The injured party must have primarily obtained the product for their own private use or consumption. For this kind of property damage, a threshold of EUR500 applies. Articles 6:185 to 6:193 of the DCC align with European Product Liability Directive 85/374/EEC, incorporating its provisions into Dutch law.
• closure or shutdown of activities; • suspension of accreditation; and • criminal prosecution.
For non- or late notification of a product safety issue, an administrative fine of EUR795 applies, or EUR1,590 for companies with more than 50 employees. These amounts also apply to putting unsafe products on the market. They may vary slightly, depending on product type. One can also be criminally prosecuted for non- or late notification, leading to six months of impris - onment, community service, or a criminal penalty of EUR27,500 (category 4). Failure to co-operate with the authorities is regarded as a serious offence. It can lead to three months of imprisonment or a criminal fine of EUR5,500 (category 2). Failure to comply with an administrative order to with - draw or recall products is regarded as a crime ( mis- drijf ). It can lead to 2 years imprisonment, community service or a criminal penalty of EUR27,500 (category 4). In exceptional circumstances involving intent or gross negligence, large companies can be subject to an administrative fine related to annual turnover. As of 1 January 2024, this fine is capped at EUR1,100,000 per violation (category 6). According to the NVWA’s General Intervention Policy 2024, in principle, a maxi - mum of five violations will be fined per inspection (per location). Consequently, in principle, a maximum administrative fine of EUR5.5 million can be imposed. In the Fipronil case, where millions of eggs were unlawfully infected with Fipronil, the Court of Overi - jssel sentenced two board members to one year of imprisonment. These board members neglected food safety, resulting in health risks, environmental dam - age, and significant economic loss (District Court Overijssel 12 April 2021, ECLI:NL:RBOVE:2021:1508).
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