Summary

This book examines government liability for damages arising from the unlawful provision of misinformation. There is no general law governing this particular species of tort liability. The requirements that have to be met in order to hold the government liable for wrongful acts are derived from article 6:162 of the Civil Code (‘Burgerlijk Wetboek’), which applies to acts of private parties and the government alike. Within this framework, liability of the government for the provision of misinformation is predominantly based on a breach of unwritten rules. Whether such rules are breached, depends on the particular circumstances of the case, including the government’s unique capability to create statute law, its expertise in this area and the apparent public law component of the information given. Such being the case, the effort to determine the law governing the liability of the government for the distribution of misinformation is no picnic. It is judge-made law based on open standards that need specification in actual situations. The central research topic of this book therefore reads as follows: ‘In which circumstances can the government be held liable for the provision of misinformation to its citizens and to what extent is an extension or limitation of government liability in this field advisable from a legal standpoint?’ Within the scope of this topic, the focus lies on these subspecies of liability for which is required that the information given is either incorrect or incomplete, or both. Furthermore, the information concerned must have wrong-footed the citizen. Further emphasis falls on the provision of information on topics of administrative law, in the sense that the topic is a matter of definition and interpretation of acts with which the government – as their author, administrator and enforcer – is to be considered particularly competent.

Part I of this book discusses the provision of information within the framework of the rule of law. It should be noted from the outset that Dutch statute law does not contain a general obligation that compels the government to provide citizens with the information they need, nor may a general right to the provision of information by the government be derived from statute law. However, a few specific acts oblige the government to provide citizens with information about certain themes of administrative law. The absence of a general right and obligation by no means implies that the government – if so requested or by virtue of office – is not competent or allowed to give information. Under Dutch law, the government does not always need a legal basis in statute law to provide information. Legal basis is more commonly found in the principles of a democratic state under the rule of law. Particularly the principle of legal certainty demands a willingness of the government to explain and interpret acts for the benefit of its citizens. A citizen who has not received any legal education is not – and cannot be expected to be – able to comprehend the meaning of the law without the assistance of the government. For the most part, statute law is far too complicated and detailed for the average citizen to grasp. For this reason, in a democracy based on the rule of law the government must be willing to interpret the law for the purpose of enhancing legal certainty. Concisely, unwritten constitutional law demands that the government explains the letter of the law if needs be. This obligation stems from the duty of the state to actively increase legal certainty. This duty should be carried out by the competent authority that has decisive powers with regard to the subject of the information that the citizen needs. The constitutional background of the supply of information entails that the government does not meet the requirements of the principle of legal certainty if the citizen is provided with incorrect or incomplete information. In this case, legal certainty is not supplied. The unwritten obligation to provide the citizen with correct information can therefore be traced back to the principles of the rule of law and, in particular, the principle of legal certainty.

Part II of this book focuses on the liability aspects of the provision of misinformation.

Chapter 3 concerns the court of competent jurisdiction. The provision of misinformation itself cannot be challenged before an administrative court. In principle, the administrative court only has jurisdiction to judge acts of government in an appeal for annulment. This appeal can only be lodged against administrative decisions (‘besluiten’), which have legal consequence. The provision of information has no legal effect. It consists of a factual act. As such, it cannot be the subject of an appeal for annulment. It is possible, however, to petition the administrative court for compensation of damages in certain clearly specified cases. Title 8.4 of the General Administrative Law Act (‘GALA’) enables citizens to petition the administrative court to award damages for misinformation in the form of unlawful administrative decisions and unlawful acts of preparation, but only if these acts are carried out in preparation of a unlawful administrative decision. If the provision of information is an isolated factual act or is carried out in preparation of a lawful decision, it cannot be the foundation of a petition to the administrative court. The exception is an administrative ruling (‘bestuurlijk rechtsoordeel’), which can be the subject of a ruling by the administrative court in extremely rare circumstances.

In any other case, the civil court has sole jurisdiction to hear disputes arising as a result of the provision of misinformation by the government. When deciding these disputes, the civil court has to take into account whether administrative decisions have been taken and whether these decisions have obtained formal legal force (‘formele rechtskracht’). The Dutch doctrine of formal legal force dictates that an administrative decision, which has not been successfully contested within the available period of appeal, is regarded legally binding and lawful. A claim for damages cannot be based on the contention that a decision with formal legal force is unlawful. The formal legal force of the decision sometimes extends over the provision of misinformation. This is the case if the information is so closely connected to the decision with formal legal force that it has an accessory nature with respect to the decision. Damages for misinformation can exclusively be awarded if the misinformation is an unlawful act considered on its own. It has to be unlawful independent of the contents of the administrative decision. The doctrine of formal legal force therefore prohibits awarding damages for misinformation when the assessment of the lawfulness of said misinformation requires an assessment of the lawfulness of the administrative decision itself. The rationale behind this doctrine is mainly that the latter assessment should be carried out by the administrative court within the scope of an appeal for annulment, and not by the civil court within the scope of a claim for damages. In my opinion, however, it would simplify matters considerably to take as a starting point that damages cannot be awarded if the claimant directly or indirectly aims at the unlawfulness of an administrative decision. If the claimant, on the other hand, only claims damages as a direct result of misinformation, there is no reason not to award these damages in civil proceedings.

Chapter 4 considers in which cases the provision of misinformation must be regarded as an unlawful government act. In Dutch law, there are only a handful of specific statutory provisions from which the liability of the government for misinformation arises. In short, these provisions concern the liability for misinformation on the legal status of immovable property subject to registration. If no specific statutory provision is applicable, the citizen is thrown back on the action based on article 6:162 of the Civil Code. A person who commits an unlawful act against another person, which can be imputed to him, must repair the damage which the other suffers as a consequence. Both an act or omission in violation of statutory duties and an act or omission in conflict with what is generally accepted according to unwritten law are unlawful acts in the sense of article 6:162 of the Civil Code. There are few statutory obligations that require the government to provide accurate and complete information. Just as few obligations prohibit that the citizen is provided with incorrect or incomplete information. In most cases the government is blamed for acts contrary to unwritten law. The unlawfulness of these acts must be considered on a case-by-case basis. It appears from the case law of the Dutch Supreme Court (‘Hoge Raad’) that it depends on the circumstances of the case whether the provision of misinformation is unlawful. The sole fact that misinformation was provided, does not suffice.

Weighty circumstances of the case are the contents of the request for information and what the government has had to understand as to that, and also the nature and contents of the information that the government has giv- en in answer to that request and what the citizen has had to understand as to that. Only when in the given circumstances the citizen may rest assured that he was given accurate and complete information with a certain content, it is possible that the provision of incorrect or incomplete information constitutes an unlawful act against this citizen. The liability of the government is founded on the principle that the misinformation has misled the citizen and has put him on the wrong track. This principle can be traced back to the aforementioned principle of legal certainty. When the provision of information does not guarantee legal certainty, the liability of the government for damages occurred as a result of the absence of legal certainty is the only acceptable solution. This liability is based on acts of the government that have given rise to legitimate expectations which eventually turned out to be built on quicksand. In this regard, it is unlawful to inspire confidence that is misplaced. This liability is expressly not based on the fact that the government has not lived up to the arisen expectations, in the sense that a person’s confidence was betrayed.

Whether or not the expectation that the citizen has received correct information is justified, depends on a multitude of circumstances. The relevant circumstances can be divided into three categories: (i) the nature of the legal relationship, (ii) the nature of the information and (iii) the nature of the affected interests. Included in the first category is the important viewpoint of the position of the government in society. Statute law is passed by the government. This fact involves that the government is considered pre-eminently competent to distribute information with regard to administrative law and the interpretation of said law. The citizen depends on this distribution and the competence of the government in this respect. A different viewpoint is the capacity of the administrative authority that gives information. Legitimate expectations cannot only be derived from information that originates from the competent authority. In Dutch law, incompetent authorities are also allowed to provide information and are as such capable of creating expectations. Even officials without the power of decision can be a source of justified expectations, depending on their position and expertise. The capacity of the citizen is also an import viewpoint. Certain citizens, such as lawyers, or businesses have distinguishing qualities that make them stand out in terms of their legal knowledge. Secondly, relevant factors within the viewpoint of the nature of the information are the complexity and accessibility of the information concerned, the addressee and specificity of the information and the use of disclaimers, restrictions and conditions. Thirdly, within the viewpoint of the nature of the affected interests, it is important to assess whether an individual’s particular interests, the nature of these interests and the (financial) size of these interests were known by the government or knowable to the government at the time of the provision of the information concerned.

Chapter 5 delves into the issue of the imputability of the unlawful provision of misinformation by the government. Case law and literature are inclined to judge the imputability of unlawful information in the same way as the imputability of unlawful administrative decisions. The unlawful act is almost always imputable to the government. Exceptions to this rule are rare. The underlying thought is that it is not acceptable for the government to invoke error in law. After all, the government is the author of statute law and is considered pre-eminently competent to distribute information with regard to administrative law. Furthermore, the government is able to apportion damages between the collectivity through taxation. It is submitted, however, that an exception to these rules of imputability is permissible when the government has had no reason to take the risk of inaccuracy of the given information into account. When the government has chosen a point of view that is not contestable, and available case law and literature do not refute this point of view, the unlawful act cannot, in my view, be imputed to the government. This exception only applies when the correct interpretation of the law was entirely unforeseeable. If this is the case, it cannot be considered reasonable to impute this act to government, because there is no reason to assume that government had to know better than the citizen that suffered damages as a result of the provision of misinformation.

Chapter 6 zooms in on the relativity requirement. In Dutch law, there is no obligation to repair damages if the standard breached does not purport to protect against the damages as suffered by the injured party. This rule applies not only to a violation of statute law, but also to a violation of unwritten law. The standard that is breached by providing misinformation reads that the government should refrain from giving incorrect or incomplete legal rulings that inspire misplaced confidence. This standard aims to prevent the citizen from being set on the wrong track. The purpose of this standard is much harder to determine. It appears to be that government information is a means to an end. Through obtaining government information the citizen should be able to make well informed choices in social and economic life. The provision of correct information leads to legal certainty with which citizens should be able to move their socioeconomic existence in the right direction. This aim and purpose of the standard breached involves that the party that is possibly injured by the misinformation is apparent to the government. Parties whose interests are not known by the government, nor knowable to the government, are not protected by the aforementioned standard. Furthermore, the damages suffered must have been foreseeable at the time of the provision of misinformation in view of the target of the request for information. Loss occurred as a result of a use of the given information that is alien to its purpose does not qualify for compensation.

Chapter 7 covers a number of topics. Firstly, the tenet of causal connection. There is obviously no reason for compensation of damages if these damages would have occurred anyway. Damages therefore only qualify for compensation if they occurred as a direct result of the provision of misinformation. This causal connection - between the unlawful act and the damages occurred - is established by comparing the actual situation with a hypothetical situation. What the hypothetical situation looks like, depends on the alternative behavior of both the government that provides information and the citizen that receives it. It must be determined whether the government would have provided correct information instead of incorrect information or no information at all. Moreover, it must be determined how the citizen would have proceeded in the event of receiving correct information or no information at all. This entails that the provision of misinformation must have been the cause for the citizens behavior in the factual situation, in the sense that the citizen would have refrained from this behavior in the hypothetical situation. Compensation for lost opportunity is conceivable in situations in which the causal connection also depends on the alternative behavior of third parties, such as other administrative authorities. Which damages qualify for compensation is connected to the aforementioned aim and purpose of the standard that is breached. Only damages resulting from a misstatement of fact and law are compensated for. In contrast with firm commitments, there is no compensation for damages that occur because the government does not fulfil its promises or does not act accordingly. Finally, Dutch law dictates that no obligation exists to fully compensate loss occurred when both parties are at fault (article 6:101 Civil Code). No compensation can be claimed for damage as a result of imprudence on the citizens side. Carelessness in this sense takes the form of failing to verify the correctness and completeness of the information given, although the nature of this failure to act forms a reason to exercise restraint. It also appears as the provision of incorrect information to the government. Disregarding disclaimers, restrictions and conditions can also be considered imprudent.

Part 3 concludes this book.

Chapter 8 infers from previous chapters that Dutch liability law for the provision of misinformation by the government answers to the principles of a democratic state under the rule of law. The competence of the courts does leave room for improvement. A proposal is made to extend jurisdiction of the administrative court at the expense of the jurisdiction of the civil court. The proposed extension intends to assign sole jurisdiction over claims for damages caused by the provision of misinformation on topics of administrative law to the administrative court. This kind of claims ought to be judged by the administrative court. Moreover, it is relatively easy to expand the reach of Title 8.4 of the GALA in order to enable citizens to petition the administrative court to award damages for this specific form of misinformation. Furthermore, the scope of the doctrine of formal legal force should be brought back to its original state, in which it only prevents awarding damages that cannot be allotted without delivering judgment on the legal validity and lawfulness of an administrative decision. From a perspective of substantive law, civil courts should, until jurisdiction is transferred to administrative court, bear in mind that not all misinformation is unlawful. As is explained, only the provision of misinformation that appears trustworthy is unlawful. Civil courts should also realize that it is entirely possible to award damages for unlawful misinformation and – at the same time – decrease these damages on grounds of carelessness on the part of the citizen. In my view, these are the most important points of improvement. These improvements can be implemented without changing substantive law or introducing statute law in the field of government liability. These improvements merely require lower judicial authorities to conform to case law already settled by the Dutch Supreme Court.