10.4.1 The status of entrepreneur as viewpoint when interpreting open standards

The first sub-question of this thesis is: to what extent do courts, under Dutch tort law, have the possibility to take the status of entrepreneur-tortfeasor into account when assessing and interpreting the requirements ‘act’, ‘perpetratorship’, ‘unlawfulness’ and ‘imputability’? This research concludes that in many cases these four requirements are interpreted differently, and should be interpreted differently, if the party sued is an entrepreneur.

When establishing perpetratorship, it matters whether the party sued is a human being or a legal person. In principle, if an individual acted physically, he is considered to be the perpetrator of that physical conduct. In other words, the physical conduct is reason to conclude that that person is in fact the perpetrator. As regards to legal persons, the situation is different. After all, a legal person cannot act in a physical sense. The solution is indirect perpetratorship: the conduct of a person will constitute conduct of the legal person, if it is generally held in society that this conduct must be considered an own act of that legal person. Under circumstances, however, it is possible to move away from this anthropocentric approach. In case the damage resulted from a division of labour or so-called structural errors and the acting officer within the organisation cannot be identified, the court can construct perpetratorship in a more direct way by attaching importance to factors not related to individuals within the organisation. These factors relate to the corporate nature of the legal entity. They include: the circumstance that the conduct fits within the normal business activities; the circumstance that the legal entity benefited from the conduct; and the nature of the legal entity, in particular the internal structure and size of the organisation. These circumstances do not play a role in determining perpetratorship of an individual. The result is a distinction between individual and collective acts. This conclusion follows from analysis of scholarly literature and Supreme Court case law. I have not conducted a structured case law analysis. There remains an opportunity for follow-up research.

In addition, being an entrepreneur affects the criteria ‘unlawfulness’ and ‘imputability’. I have concluded that the status of entrepreneur affects the unlawfulness requirement in the following ways: the status of entrepreneur plays a role when determining the level of knowledge held by the party sued; the status of entrepreneur is a factor that has to be taken into account when interpreting the standard of care under Article 6:162(2) of the Civil Code; and the status of entrepreneur has an indirect effect via legislation and private regulations. Something similar applies with regard to the interpretation of the imputability criterion (Article 6:162(3) Civil Code).

The conclusion reached is only partly reflected in case law. The number of judgments in which the lower courts explicitly consider the status of entrepreneur is, however, limited. It is difficult to ascertain the reasons for this. Empirical-legal follow-up research into the decision-making behaviour of judges may possibly provide an answer.