1 LIABILITY SYSTEMS

1.1 What systems of product liability are available (i.e. liability in respect of damage to persons or property resulting from the supply of products found to be defective or faulty)? Is liability fault based, or strict, or both? Does contractual liability play any role? Can liability be imposed for breach of statutory obligations e.g. consumer fraud statutes?

The relevant product liability provisions are based on the EU Product Liability Directive (85/374/EEC) (the "Directive"). The Directive has been implemented in provisions 6:185 through 6:193 of the Dutch Civil Code ("DCC") (Burgerlijk Wetboek). Liability under these provisions is strict based. The types of damages which can be claimed are limited. See question 6.2.

The product liability provisions are without prejudice to all other rights or actions of the injured party (cf. art. 13 Directive and art. 6:193 DCC). An injured party can thus also rely on the general provision for a wrongful act (art. 6:162 DCC). Liability under this provision is, in principle, fault based. However, as a basic rule, the Supreme Court has accepted that a party acts wrongfully when it brings a product onto the market that causes damage when being used for the normal use intended for that product, even when that party lacks the relevant knowledge (e.g. Supreme Court 22 October 1999, NJ 2000, 159). In addition to the general provision for a wrongful act, an injured party which has a contract with the seller can also invoke a breach of contract (art. 6:74 and, more specifically, for consumer sales, art. 7:24 DCC). Under these provisions, in principle, all types of damage can be claimed. See question 6.2.

1.2 Does the state operate any schemes of compensation for particular products?

No, the state does not operate any official scheme of compensation for particular products. However, for general damages, there is an unofficial guide (Het Smartengeldboek) – also available online; www.smartengeld.nl – which contains a collection of case law on general damages. In practice, many courts make use of this guide, which practice may also be justified by the fact that the Supreme Court explicitly ruled that it stands to reason that a court, when calculating damages, takes notice of amounts awarded by Dutch courts in comparable cases (Supreme Court 8 July 1992, NJ 1992, 714).

1.3 Who bears responsibility for the fault/defect? The manufacturer, the importer, the distributor, the "retail" supplier or all of these?

Under the product liability provisions, the producer, in principle, bears responsibility for a defective product (art. 6:185 DCC). A 'producer' is defined as the manufacturer of a finished product, the producer of raw material, or the producer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer (art. 6:187 sub 2 DCC). Without prejudice to the liability of the producer, any person who imports a product into the European Economic Area for sale, hire, leasing or for any form of distribution in the conduct of his commercial activities, shall be deemed to be a producer, and shall be responsible as a producer. Where the manufacturer or importer of a product cannot be identified, each supplier shall be treated as producer, unless the supplier informs the injured party within a reasonable time of the identity of the producer or importer.

Under the general liability clauses, such as a wrongful act (art. 6:162 DCC) and/or a failure in performance of an obligation (e.g. art. 6:74 DCC), other parties can be liable as well. For instance, in case of a failure in performance of an obligation due to the defect, the supplier is, in principle, responsible for the damages suffered as a result of that failure.

1.4 In what circumstances is there an obligation to recall products, and in what way may a claim for failure to recall be brought?

When a defective product has been put on the market, there could be an obligation to recall that product. In short, this obligation is based on (i) public law, (ii) civil law, and (iii) the obligation vis-àvis the insurer to mitigate damages.

  1. According to Directive 2001/95, which has been implemented in the Commodities Act (Warenwet), it is prohibited to bring products onto the market of which the producer or supplier knows or should know that they can be dangerous for humans when used for the intended use. When a party knows that it supplies dangerous products, it should inform the Food and Consumer Product Safety Authority ("FCA") (Voedsel en Waren Autoriteit) immediately. The FCA provides tools on its website which can help to determine whether a product is dangerous. The FCA could order the producer or supplier to recall the dangerous products.
  2. Under civil law, it is prohibited to allow a dangerous situation to exist. When such a situation occurs, a producer or supplier can be held liable if it fails to take proper action. Whether a recall is required depends, amongst other things, on the nature of the product, the chance that accidents will happen, the nature and severity of such accidents and how onerous taking such measures is.
  3. An obligation to recall may also result from obligations towards the insurance company. When an insured party is aware of a risk, it is obliged to take measures to minimise the damages. Within certain boundaries, the insurance company is obliged to reimburse the cost of the measures taken (art. 7:957 DCC). If the injured party fails to take appropriate measures, the insurance company could reduce payment.

1.5 Do criminal sanctions apply to the supply of defective products?

Criminal sanctions apply to the supply of defective products. This is mainly based on the Economic Offences Act ("EOA") (Wet op de Economische Delicten). If a party has brought dangerous products onto the market and failed to inform the FCA, it can incur, inter alia, a fine of up to EUR 19,500, or the responsible person can be imprisoned for a maximum of six months (art. 1 (4) EOA in conjunction with art. 6 (1)(4) EOA). If the FCA orders a party on the basis of art. 21 (2) Commodities Act to take proper measures, such as a product recall, and a party fails to comply, heftier sanctions apply. In that scenario, fines can also amount to EUR 19,500 and the responsible person can receive a prison sentence for a maximum of two years (art. 1 (3) EOA in conjunction with art. 6 (1)(2) EOA). In both scenarios, additional penalties can be imposed, such as a temporary shutdown of the company (art. 6 (2) EOA in conjunction with art. 7 and 8 EOA).

When a person knowingly and wilfully brings a dangerous product onto the market and that person knowingly and wilfully conceals a potential danger, it can incur, inter alia, a fine of up to EUR 78,000 and the person can be imprisoned for a maximum of – in very exceptional circumstances – 30 years (art. 174 Criminal Code and cf. for other regulations art. 175 Criminal Code).

2 CAUSATION

2.1 Who has the burden of proving fault/defect and damage?

In principle, the party that relies on legal consequences following from the facts or rights invoked by that party has the burden of proving those facts and rights (art. 150 Code of Civil Procedure ("CCP") (Wetboek van Burgerlijke Rechtsvordering). When it comes to general liability provisions, the claimant consequently has to prove fault, defect and damage.

The product liability provisions contain a specific provision on the burden of proof. Art. 6:188 DCC stipulates that the injured party has to prove damage, defect and the causal link between defect and damage. When the injured party has proven that a product is defective and that defect caused damage, the burden is on the producer to prove, inter alia, that the defect did not exist when the product was brought onto the market.

The court has several ways to meet the interest of the injured party. First, it can reverse the burden of proof, which often seems to occur in liability cases. Second, the court can presume that the facts raised are true, subject to proof of the contrary. Third, when causation is hard to prove, the court can apply the concept of proportional liability. According to this principle, a court may establish a percentage of the chance that the damage was caused by the sued party if (i) it is uncertain whether the damage was caused by the sued party or the injured party, and (ii) the chance that the damages were caused by the sued party is not "very small" and not "very large". The court will subsequently award an equal percentage of the damages suffered. To date, it has not been tested whether this concept fits within the principles as laid down in the Directive.

2.2 What test is applied for proof of causation? Is it enough for the claimant to show that the defendant wrongly exposed the claimant to an increased risk of a type of injury known to be associated with the product, even if it cannot be proved by the claimant that the injury would not have arisen without such exposure?

Causation will be assumed when it is more than probable that the damage was caused by violation of the standard. When causation cannot be proved by the claimant, the court has several ways to meet the interest of the claimant. See question 2.1.

2.3 What is the legal position if it cannot be established which of several possible producers manufactured the defective product? Does any form of market-share liability apply?

The Supreme Court explicitly stated in DES that under Dutch law there is not a market-share liability system available (Supreme Court 9 October 1992, NJ 1994, 535, DES). However, some principles apply which tend to a market-share liability. For example, (i) where damage may have resulted from two or more events, for each of which a different person is liable, and (ii) it has been established that the damage has arisen from at least one of these events, the obligation to pay the damages falls upon each person involved (art. 6:99 DCC). In DES, the Supreme Court applied this principle in the situation that it was not clear which manufacturer produced the product that caused the damage. The Supreme Court ruled that it is up to the injured party to state and prove that (i) the pharmaceutical company brought DES onto the market and is liable for that, (ii) one or more other pharmaceutical companies also brought DES onto the market and are liable for that, and (iii) it suffered damages as a result of DES, but it cannot be established which company produced that specific DES. In that scenario, all companies as mentioned under sub (ii) are liable.

In addition, it is stipulated under the product liability provisions that in the event several producers are liable according to art. 6:185 DCC (see question 1.3) for the same damage, each of them is liable for the whole (art. 6:189 DCC).

2.4 Does a failure to warn give rise to liability and, if so, in what circumstances? What information, advice and warnings are taken into account: only information provided directly to the injured party, or also information supplied to an intermediary in the chain of supply between the manufacturer and consumer? Does it make any difference to the answer if the product can only be obtained through the intermediary who owes a separate obligation to assess the suitability of the product for the particular consumer, e.g. a surgeon using a temporary or permanent medical device, a doctor prescribing a medicine or a pharmacist recommending a medicine? Is there any principle of "learned intermediary" under your law pursuant to which the supply of information to the learned intermediary discharges the duty owed by the manufacturer to the ultimate consumer to make available appropriate product information?

A product is defective when it does not provide the safety one may expect, taking all circumstances into account, including e.g. the presentation of the product (art. 6:186 (1)(a) DCC). Since a person's expectations may depend on the presentation of the product and thus the information provided with that product, a failure to warn could certainly trigger liability. According to Lekkende kruik, the producer is obliged to attune the presentation to the entire community and thus also to incompetent users (Supreme Court 2 February 1973, NJ 1973, 315). Consequently, the warnings must be unambiguous.

The question whether a producer of a prescription medicine can suffice with a warning towards only the specialist was dealt with in Halcion (Supreme Court 20 June 1989, NJ 1990, 652). Even when a product can only be obtained through a specialist, the producer is obliged to provide consumers with adequate information about the products. The consumer does not have to expect side effects for which he is not warned. If the producer fails to warn consumers properly about a certain side effect – e.g. via a specialist or patient leaflet – and that side effect arises, the producer is, in principle, liable.

3 DEFENCES AND ESTOPPEL

3.1 What defences, if any, are available?

The product liability provisions contain an exhaustive list of defences a producer could raise when a claimant relies on art. 6:185 DCC. The defences available are:

  1. that the producer did not bring the product onto the market;
  2. that, given the circumstances, it is likely that the defect that caused the damage did not exist at the time the product was brought onto the market;
  3. that the product was not manufactured by the producer for sale or any form of distribution for economic purposes nor manufactured or distributed in the course of its business;
  4. that the defect was due to the fact that the product is in accord with mandatory government regulations;
  5. that, given the state of scientific and technical knowledge by the time the product was brought onto the market, it was impossible to discover the defect timely; and
  6. for the producer which only produced raw material or a component, that the defect was caused by the design of the product or was a result of the instructions given by the producer of the product.

When a claimant relies on the general provisions for a wrongful act or contractual liability, a broader scope of defences may be available. However, if the claim relates to the same damage which can be awarded under the product liability provisions, it is generally accepted that art. 6:185 DCC has a certain consequential effect (reflexwerking).

3.2 Is there a state of the art/development risk defence? Is there a defence if the fault/defect in the product was not discoverable given the state of scientific and technical knowledge at the time of supply? If there is such a defence, is it for the claimant to prove that the fault/defect was discoverable or is it for the manufacturer to prove that it was not?

Such defence is indeed available. See question 3.1 (under v). It is up to the producer to prove that the defect was not discoverable. The chances of success are low. Only in one generally known case, namely Sanquin, did a producer prevail under this defence (District Court of Amsterdam, 3 February 1999, NJ 1999, 621).

3.3 Is it a defence for the manufacturer to show that he complied with regulatory and/or statutory requirements relating to the development, manufacture, licensing, marketing and supply of the product?

In the context of whether or not a product is defective, the producer could raise as a supporting argument that he complied with regulatory requirements.

When it is established that the product is defective, but that the defect results from mandatory government regulations, the producer could invoke those circumstances to escape liability. See question 3.1 (under iv).

3.4 Can claimants re-litigate issues of fault, defect or the capability of a product to cause a certain type of damage, provided they arise in separate proceedings brought by a different claimant, or does some form of issue estoppel prevent this?

As long as the claims are brought by different claimants, it is possible to re-litigate issues which have been dealt with in separate proceedings.

3.5 Can defendants claim that the fault/defect was due to the actions of a third party and seek a contribution or indemnity towards any damages payable to the claimant, either in the same proceedings or in subsequent proceedings? If it is possible to bring subsequent proceedings is there a time limit on commencing such proceedings?

If a party wishes to seek contribution or indemnity towards any damages awarded to the claimant, it could institute third-party proceedings. According to a recent judgment of the Supreme Court, the limitation period of a recourse claim which derives from joint and several liability, in principle, starts running after the defendant in the main proceedings has paid the amount awarded to the claimant (Supreme Court 6 April 2012, LJN BU3784).

3.6 Can defendants allege that the claimant's actions caused or contributed towards the damage?

The defendant can allege that the claimant can be blamed for the damage, for example, if the defendant has chosen not to return a defective product despite a carefully executed recall. Such defence could mitigate the obligation to compensate damage suffered (art. 6:101 DCC).

4 PROCEDURE

4.1 In the case of court proceedings is the trial by a judge or a jury?

Jury trials do not exist in the Netherlands; proceedings are dealt with by professional judges.

4.2 Does the court have power to appoint technical specialists to sit with the judge and assess the evidence presented by the parties (i.e. expert assessors)?

In the Netherlands, there is not a system in which an expert sits with the judge and rules with the judge. The judge does have the possibility to seek advice from an expert. See question 4.8.

4.3 Is there a specific group or class action procedure for multiple claims? If so, please outline this. Is the procedure 'opt-in' or 'opt-out'? Who can bring such claims e.g. individuals and/or groups? Are such claims commonly brought?

A class action as known in the common law system does not exist in the Netherlands. Under Dutch law, there are various alternatives to deal with multiple claims.

First, it is possible to consolidate cases, in a sense that several claimants are involved in one proceeding. Especially in personal injury cases, legal counsel often represents a multiple of claimants in the same proceedings.

Second, a foundation or an association can institute proceedings for the purpose of protecting similar interests of other persons to the extent that its articles promote such interests (art. 3:305a DCC). These proceedings can, inter alia, be used to obtain a declaratory judgment vis-à-vis the liable party. Monetary compensation cannot be claimed. The procedure is 'opt-out'; the judgment does not affect a person who opposed an effect of the judgment towards him.

Third, parties can assign their claims. The assignee may subsequently commence proceedings. The deed of assignment often contains a provision that, should the claim be awarded, the injured party is entitled to a certain percentage of the claim awarded. Several claim vehicles make use of this possibility to bring multiple claims as one party.

Fourth, when a legal issue is important for a number of cases, a lower court could submit a preliminary question to the Supreme Court (art. 392 CCP). Art. 392 CCP entered into force on 1 July 2012. By means of this article, parties in multiple cases can thus obtain clarity in the short term. Such clarity could contribute to settlement negotiations.

Fifth, Dutch law provides for an opt-out mechanism that facilitates the implementation of collective settlements in a fashion somewhat similar to US class action settlements. This mechanism is rooted in the Act on the Collective Settlement of Mass Claims, known in the Netherlands as the "WCAM". The WCAM entered into force on 27 July 2005. Basically, it provides parties to a settlement agreement with the possibility of jointly requesting the Amsterdam Court of Appeal (the "Court") to declare the settlement agreement binding. The agreement must be concluded between one or more potentially liable parties, and one or more foundations or associations representing one or more groups of persons for whose benefit the settlement agreement was concluded (the "interested persons"). If the Court does declare the settlement agreement binding, the agreement binds all persons covered by its terms, unless such person decides to opt-out in writing within a certain time period after the binding declaration. The opt-out period is determined by the Court, but is at least three months. Before deciding on the binding declaration, the Court will test, among other things, the representativity of the foundation(s) and association(s) representing the interested persons, as well as the reasonableness of the settlement. Notification of the interested persons is crucial, both at the litigation stage, where the aim is to obtain a binding declaration, as well as after the binding declaration has been issued. The binding effect of a settlement agreement is only regarded as acceptable if the interested persons have been properly notified at both stages, and thus have had an opportunity to object and to opt-out. Thus far, the Court has rendered six final decisions within the framework of the WCAM. In each of these cases, the Court declared the settlement agreements binding. It further found the settlements reasonable and affirmed the standing of the foundations and associations representing the persons in the suit. Decisions within the framework of the WCAM are, inter alia, DES (the Amsterdam Court of Appeal, 1 June 2006, NJ 2006, 461, regarding personal injury allegedly caused by a harmful drug) and Dexia (the Amsterdam Court of Appeal, 25 January 2007, NJ 2007, 427, regarding financial loss allegedly caused by certain retail investment products). Shell is a landmark decision on the international application of WCAM, as the Court assumed jurisdiction with regard to all interested parties, irrespective of their domicile (the Amsterdam Court of Appeal, 29 May 2009, NJ 2009, 506). The interim (and provisional) decision in Converium takes the matter a step further by not requiring that any of the potentially liable entities be seated in the Netherlands (the Amsterdam Court of Appeal, 17 January 2012, NJ 2012, 355). However, also in Converium, some connection with the Netherlands appears to be required, namely one or more interested persons should be domiciled in the Netherlands and one or more petitioners should be Dutch entities. In large international cases, since there will often be one or more interested persons with domicile in the Netherlands, this requirement will often be met. The requirement that one or more petitioners should be Dutch will be met if the foundation or association representing the interested persons is a Dutch entity. Such a foundation or association may be an entity created for the occasion, provided it can meet the representativity test.

4.4 Can claims be brought by a representative body on behalf of a number of claimants e.g. by a consumer association?

Claims can be brought by a representative body, although monetary damages cannot be awarded. See question 4.3, the second alternative. Also in this respect the possibilities under WCAM are noteworthy (see question 4.3, the fifth alternative).

4.5 How long does it normally take to get to trial?

In principle, it takes about one and a half - two years per instance to get a judgment. Especially in first instance and appeal the proceedings can take shorter or (much) longer subject to the complexity of the case, whether witnesses will be heard, etc. Proceedings before the Supreme Court are more predictable, since in those proceedings, there is no room for factual research.

4.6 Can the court try preliminary issues, the result of which determine whether the remainder of the trial should proceed? If it can, do such issues relate only to matters of law or can they relate to issues of fact as well, and if there is trial by jury, by whom are preliminary issues decided?

A lower court could submit a preliminary question to the Supreme Court. See question 4.3, the fourth alternative. Further, in general, courts have a discretionary power on how to set up proceedings. Unless it is in specific circumstances contrary to due process of law, the court is allowed to deal with specific factual or law-related questions before handling the case as a whole. The approach taken can influence a party's decision whether or not to continue proceedings.

4.7 What appeal options are available?

Parties can in principle lodge an appeal before the court of appeal, unless the claim in first instance did not exceed an amount of EUR 1,750 (art. 332 CCP). In some specific circumstances – which are regulated by law – a prohibition on appeal applies. Parties may lodge an appeal before the Supreme Court against particular decisions rendered in first instance which cannot be appealed before the court of appeal or decisions rendered by the court of appeal (art. 398 (1) CCP). With mutual consent, parties may also decide to omit the appeal proceedings and lodge an appeal at once before the Supreme Court against a decision in first instance (art. 398 (2) CCP).

4.8 Does the court appoint experts to assist it in considering technical issues and, if not, may the parties present expert evidence? Are there any restrictions on the nature or extent of that evidence?

The court could appoint experts to receive information on technical or (foreign) law- related issues (art. 194 CCP). The parties are also allowed to present expert evidence, without any restrictions. Subject to exceptions provided by law, the assessment of the evidence is up to the court.

4.9 Are factual or expert witnesses required to present themselves for pre-trial deposition and are witness statements/expert reports exchanged prior to trial?

Dutch law does not provide a trial system. In general, when a report has been submitted to the court, the counterparty obtains the possibility to submit a response.

4.10 What obligations to disclose documentary evidence arise either before court proceedings are commenced or as part of the pre-trial procedures?

Parties are obliged to bring forward all facts which could be relevant for the decision. If a party does not meet this obligation, the court may draw the conclusion which it deems appropriate (art. 21 CCP). In addition, each party which relies on certain documents is obliged to submit those documents to the court (art. 85 CCP). Neither party has a general obligation to disclose all documentary evidence prior to or during proceedings. However, following a request of the counterparty, a similar, but more restricted obligation could arise. The party with a legitimate interest could request disclosure of documents which need to be specified and relate to a legal relationship which that party takes part in (see art. 843a CCP). The party that possesses the documents does not have to submit them if (i) he by virtue of his profession has an obligation of secrecy, (ii) has serious cause not to submit the documents, and/or (iii) a proper administration of justice is embodied, even without the documents requested.

4.11 Are alternative methods of dispute resolution available e.g. mediation, arbitration?

In the Netherlands, three alternative methods of dispute resolution are available, namely arbitration (art. 1020 through 1073 CCP), binding advice (art. 7:906 (2) DCC) and mediation. Out of these three methods, only an arbitral award is enforceable. A result of mediation and/or binding advice is only enforceable when that result is embodied in a notarial deed. As a method of dispute resolution there is also the possibility to declare a collective settlement binding, as set out under question 4.3, which should be kept in mind.

4.12 In what factual circumstances can persons that are not domiciled in the Netherlands, be brought within the jurisdiction of your courts either as a defendant or as a claimant?

The jurisdiction rules are laid down in several treaties and regulations. In addition, Dutch procedural law contains several jurisdiction clauses. In short, without being exhaustive, the following rules apply.

The Dutch provisions regarding jurisdiction in international cases are set out in art. 1 through 14 DCC. According to art. 2 DCC, the Dutch court has jurisdiction in cases which should be commenced by a writ of summons and where the defendant is domiciled in the Netherlands. Besides this basic rule, jurisdiction can apply in several other circumstances. For example, in case of a wrongful act, art. 6 (e) DCC stipulates that a Dutch court has jurisdiction if the circumstances which caused the damage occurred in the Netherlands.

However, as mentioned above, often specific treaties or regulations apply, which have preference over national law. In each specific case, the claimant has to determine which specific set of rules apply. The most common regulation is the Brussels I Regulation (no. 44/2001) ("Brussels I"). Brussels I is quite similar to the Dutch provisions regarding jurisdiction. In short, Brussels I applies in cases relating to civil and commercial matters and where a defendant is domiciled in a Member State. According to art. 2 Brussels I, a person who is domiciled in a Member State should be sued in the courts of that Member State. A person can only be sued in another state if Brussels I provides for that. For instance, in matters of a wrongful act, a person domiciled in a Member State may also be sued in the courts of the place where the wrongful act occurred (art. 5 (3) Brussels I). For consumers who intend to bring a contractual claim, art. 16 Brussels I stipulates that they may bring proceedings either in the courts of the Member State in which the other party to the contract is domiciled or in the courts of the place where the consumer is domiciled.

5 TIME LIMITS

5.1 Are there any time limits on bringing or issuing proceedings?

Under Dutch law, time limits apply.

5.2 If so, please explain what these are. Do they vary depending on whether the liability is fault based or strict? Does the age or condition of the claimant affect the calculation of any time limits and does the Court have a discretion to disapply time limits?

The limitation period depends on the grounds invoked. If the claimant relies on the product liability clauses, the claim will be time-barred three years after the injured party became or should have become aware of the damage, the defect and the identity of the producer (art. 6:191 (1) DCC). In any event, the claim will be time-barred ten years after the product has been brought onto the market (art. 6:191 (2) DCC).

Claims based on contractual obligations or wrongful act will be time-barred after five years following the day the injured party became or should have become aware of, in short, the information needed to commence proceedings such as the damage and liable party. Regardless of the knowledge of the injured party, the claim will in any event collapse after the absolute limitation period – which in most cases is 20 years – has expired.

Limitation periods can be interrupted by, inter alia, the institution of proceedings or by letters in which the injured party unequivocally reserves his right to performance.

Besides limitation periods, also other time periods are relevant in order to secure a potential claim. If a buyer is of the opinion that the product did not fulfil its obligations under the agreement, he has to notify the seller thereof promptly after he has or should have discovered the shortcoming (see art. 7:23 DCC and art. 6:89 DCC). If the injured party fails to comply with this requirement, its potential right lapses.

The age or condition of the claimant does not affect the limitation period. Only in exceptional circumstances will the court set aside a limitation period, for example, when – among other circumstances – the damage occurred after the limitation period expired. See also question 5.3.

5.3 To what extent, if at all, do issues of concealment or fraud affect the running of any time limit?

Issues of concealment or fraud could relatively easily affect a short limitation period (e.g. three or five years). As mentioned under question 5.2, the short limitation period starts running as soon as the injured party became aware of, in short, the relevant issues. If a person does not become aware of these facts due to concealment or fraud, the limitation period starts running later in time.

In addition, in Van Hese/Schelde (Supreme Court 28 April 2000, NJ 2000, 430) the Supreme Court summarised some viewpoints which a court should take into account when assessing whether it would be unacceptable according to the principles of reasonableness and fairness when a party prevails under – in that case – an absolute limitation period of 30 years. One of these circumstances is whether and to what extent a party can be blamed for the situation.

6 REMEDIES

6.1 What remedies are available e.g. monetary compensation, injunctive/declaratory relief?

Several remedies are available, either under the product liability or general liability provisions, such as monetary compensation and a declaratory relief. In the latter case, parties often request the court to allow follow-up proceedings for the determination of damages.

6.2 What types of damage are recoverable e.g. damage to the product itself, bodily injury, mental damage, damage to property?

The types of damage recoverable differ for the several liability grounds.

Under the product liability provisions, only certain damages can be claimed. The liability extends to damage caused by (i) death or personal injuries – including mental damage – and (ii) the product to another object, which is usually intended for private use or consumption, and which has been used by the person suffering the loss mainly for private purposes, with an excess or deductible of EUR 500 (cf. art. 6:190 (1) DCC).

Under the general liability provisions, the damages which can be claimed are broader in scope, namely according to art. 6:95 DCC financial loss and other loss, the latter to the extent that the law confers a right to damages. Art. 6:96 DCC provides a further outline of what financial loss could be. Examples are the loss incurred and the profit deprived.

6.3 Can damages be recovered in respect of the cost of medical monitoring (e.g. covering the cost of investigations or tests) in circumstances where the product has not yet malfunctioned and caused injury, but it may do so in future?

When a party is liable under the general liability provisions for a product which may cause damage, the court could order the party involved to recover the reasonable costs incurred to prevent minimising damage or costs incurred in assessing damage and liability (art. 6:96 (2) DCC).

6.4 Are punitive damages recoverable? If so, are there any restrictions?

Under Dutch law, punitive damages are not recoverable.

6.5 Is there a maximum limit on the damages recoverable from one manufacturer e.g. for a series of claims arising from one incident or accident?

No such limit applies, but art. 6:98 DCC stipulates that damages can only be claimed insofar as the damage is related to the event giving rise to the liability of the defendant and which, taking into account the nature of the liability and of the damage, is attributable to him.

In addition, the court has the power to mitigate the damages if an award of full damages would clearly lead to unacceptable results (art. 6:109 DCC).

6.6 Do special rules apply to the settlement of claims/proceedings e.g. is court approval required for the settlement of group/class actions, or claims by infants, or otherwise?

No specific approval is required for a settlement. However, to bind a group as a whole – subject to persons who opt-out – the settlement should be declared binding by the Amsterdam Court of Appeal (see question 4.3, fifth alternative).

6.7 Can Government authorities concerned with health and social security matters claim from any damages awarded or settlements paid to the Claimant without admission of liability reimbursement of treatment costs, unemployment benefits or other costs paid by the authorities to the Claimant in respect of the injury allegedly caused by the product. If so, who has responsibility for the repayment of such sums?

The FCA cannot claim damages awarded to claimants. The FCA could, however, under certain circumstances impose a fine (see question 1.5) and should a product be defective, it could recover the costs incurred for e.g. that assessment or the possible measures it has taken subsequently.

7 COSTS / FUNDING

7.1 Can the successful party recover: (a) court fees or other incidental expenses; (b) their own legal costs of bringing the proceedings, from the losing party?

The successful party is entitled to court fees, incidental costs such as costs for expert evidence and legal fees (inter alia art. 237 through 239 CCP). The legal fees which need to be recovered are not the actual costs. According to the "court-approved scale of costs" (het liquidatietarief) a fixed amount will be awarded, which is often far less than the actual costs. The court-approved scale of costs can be found on www.rechtspraak.nl.

7.2 Is public funding e.g. legal aid, available?

In the Netherlands, legal aid is available under certain circumstances. Legal aid will in principle be offered to persons whose interests are in the domestic jurisdiction and whose financial capacity does not exceed certain specified amounts (art. 12 Legal Aid Act (Wet op de Rechtsbijstand)).

7.3 If so, are there any restrictions on the availability of public funding?

In order to be eligible for legal aid, several criteria must be met. For instance, on the basis of art. 12 in conjunction with art. 34 (1) of the Legal Aid Act, single householders can only apply for legal aid if their annual income does not exceed EUR 25,200. For a household of one or more persons, that amount is EUR 35,600. In addition, legal aid is only available if, in short, the person seeking justice has a lower capital than the tax-free allowance. Legal aid will not be offered if, inter alia, the application is apparently devoid of any foundation or the costs of the legal aid are not in a reasonable proportion to the interest of the case (art. 12 (2) Legal Aid Act).

7.4 Is funding allowed through conditional or contingency fees and, if so, on what conditions?

Conditional fee arrangements are, in principle, allowed, as long as the fees are reasonable (cf. art. 25 (1) Rules of Professional Conduct 1992 (Gedragsregels 1992)). No cure - no pay arrangements are prohibited.

7.5 Is third party funding of claims permitted and, if so, on what basis may funding be provided?

Several claim vehicles operate in the Netherlands. Such vehicles buy a claim for a certain amount and often agree that the injured party will be entitled to a certain amount of the potential claim awarded. The vehicles often have several investors. See also under question 4.3, third alternative. This type of funding is allowed.

8 UPDATES

8.1 Please provide, in no more than 300 words, a summary of any new cases, trends and developments in Product Liability Law in the Netherlands.

An interesting development entails the increase in claim vehicles in litigation, which may imply that the Netherlands is perceived to be an attractive claim country. What is remarkable is also the active approach the government takes in that respect. The introduction in 2012 of art. 392 CCP – see question 4.3, fourth alternative – should trigger settlement negotiations and consequently offer a quick solution to having damages covered. Further, the government intends to widen the scope of the possibilities to request documents from the counterparty; a legislative bill has been submitted. The government also thought about the possibility to construe art. 3:305a DCC in such a way that monetary compensation can be claimed (see question 4.3, second alternative) and currently some parties in government are exploring the possibilities of introducing a no cure - no pay system.

Originally published by Global Legal Group Ltd, London.

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