3.3.5.2 Liability for a tortious act (Article 6:162 BW)

126. Dutch courts, amongst which the Hoge Raad, have interpreted Article G ESC in such a way that a collective action can be prohibited or restricted if it infringes the rights and interests of a third party to such an extent that a restriction of the collective action would be necessary in a democratic society.1 The formula phrased by the Hoge Raad reconciles Article G ESC with the open norm of Article 6:162(2) BW, on the basis of which an act is unlawful if it violates the rules of unwritten law pertaining to proper social conduct. The question whether a collective action infringes these rights and interests in such a way that the restriction or prohibition of the collective action would be necessary in a democratic society is a question of proportionality, which should be answered by balancing, in light of the concrete circumstances of the case, the interests and rights served by the fundamental right to collective action against the interests and rights that are infringed by the very action.2 This appraisal reflects the balancing of rights and interests under the open norm of Article 6:162BW. In short – and reflecting the words of Article G ESC – a restriction on the basis of the open norm of Article 6:162(2) BW is, according to the Dutch courts, a restriction prescribed by law and necessary in a democratic society.3 In that respect, the vehicle of Article 6:162 BW gives the court a significant margin of discretion, which is a point of debate that falls beyond the scope of this study.4

127. The situation in Laval is special in the sense that it concerns a clash between the fundamental right to collective action (Article 6(4) ESC and Article 28 Charter) and the fundamental freedom to provide services (Article 56 TFEU). The Court of Justice’s view is clear: in this very case the freedom to provide services is weightier; there are no grounds of justification that can be successfully invoked by the trade unions. Neither the interests of the trade unions nor the fundamental character of the right to collective action makes the Court of Justice alter its conclusion.

128. In relation to the possibility to successfully invoke a ground of justification provided for in the Treaty or the unwritten rule of reason by a private party, I recall what was discussed more extensively in the context of the Angonese case: the Court of Justice allows private parties to invoke grounds of justification available in Union law, but it is highly questionable whether they are suitable for private parties.5 In sum: up to now it is unclear whether and to what extent the current grounds of justification known in Union law are suitable for a private party in a horizontal dispute to rely on.

129. As in this case the Court of Justice had already concluded that the collective actions by the trade unions were contrary to Article 56 TFEU, it would be unlikely that, should the case have taken place in the Netherlands, a Dutch court would have decided otherwise on the basis of Article 6:162BW. The unlawfulness of the collective actions would be a given in this case and in these specific circumstances given the damages suffered by third parties and the disproportionate character of the collective actions in view of their objective. Moreover, by deciding differently the national court would consciously act contrary to the Court of Justice’s judgment. However, in future cases in which the fundamental right to collective action and the fundamental freedom to provide services may clash, national courts will in principle have to assess the lawfulness of collective action themselves on the basis of Union law.6 They are supposed to balance the interests and rights involved. Also they have to assess whether or not, in the specific circumstances of the case, the right to collective action justifies an infringement of the freedom to provide services.7 Collective actions that are incompatible with Article 56 TFEU are unlawful on potentially two grounds. Primarily, such collective actions constitute a violation of a statutory duty (Article 56 TFEU) and, secondly, they can classify as a violation of a rule of unwritten law pertaining to proper social conduct.

130. Another condition for liability for a tortious act is the Schutznorm theory.8 Pursuant to Article 6:163BW there is no obligation to repair damage if the norm violated does not serve to protect the aggrieved party against the damages suffered in the specific case.9 In relation to violations of Article 56 TFEU the following Schutznorm assessment can be made: besides stimulating the functioning of the internal market, Article 56 TFEU aims at protecting those who wish to offer cross-border services unhampered. In that sense, Article 56 TFEU aims at protecting private parties against damages suffered due to infringements of their freedom to provide services. In other words, Article 56 TFEU is a Schutznorm and the requirement of Article 6:163 BW can therefore not stand in the way of liability for collective actions that are in conflict with the freedom to provide services.

131. When a court deems a party to be liable on the basis of Article 6:162 BW, the court has to determine the legal consequences. This can either be an obligation to pay damages, a prohibition of (the continuation of) the tortious act, or a declaratory decision concerning the existence of a tortious act (in conjunction with Article 3:302BW). In case of liability to pay damages, to which I will restrict myself here, firstly the concrete amount of the – juridically relevant – damages suffered must be calculated (Article 6:95et seq. BW).10 Then, the court must assess how much of it can and should be attributed to the liable party (Article 6:98BW). This attribution of damages is based on reasonableness and fairness, taking into account, amongst others, the character of the damage, and the nature of the conduct it caused. 11 Pursuant to Article 6:109BW courts can mitigate damages if full compensation would be unacceptable.12 Unlike Swedish law, Dutch private law does not allow punitive damages.