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

85. The infringement of the directly horizontally effective Article 45 TFEU can constitute a tortious act in the sense of Article 6:162(2) BW.5 According to this paragraph the following are tortious acts: 1) a violation of a right – i.e. absolute personal rights and exclusive and absolute patrimonial rights6, 2) an act or omission breaching a duty imposed by law7 and 3) an act or omission breaching a rule of unwritten law pertaining to proper social conduct (maatschappelijke betamelijkheid)8.9 The latter ground for unlawfulness constitutes an open norm (zorgvuldigheidsnorm). This open norm is based on the idea of reasonableness and fairness and requires the balancing of rights and interests of the parties involved in view of the concrete circumstances of the case. The clashing of fundamental rights of private parties is also assessed on the basis of this ground for unlawfulness.10

Liability can be established only if the norm infringed aims to protect the aggrieved party against the damage suffered in the concrete case. This concerns the Schutznorm theory entrenched in Article 6:163BW (relativiteitsbeginsel).11 Beyond all doubt, the prohibition of discrimination entrenched in Article 45 TFEU aims to protect private parties against being discriminated as well as against the damage that follows from being discriminated. Surely also rules of unwritten law pertaining to proper social conduct aim to protect private parties against such damage.

86. Dutch law provides for the possibility for a party to invoke a ground of justification (rechtvaardigingsgrond) that detracts the unlawfulness of an act.12 The grounds of justification in Dutch law are primarily the grounds of justification found in the Dutch Criminal Code, placed in a private law context.13 In relation to an infringement of Article 45 TFEU it is unlikely for one of these grounds of justification to apply. Yet anyhow, in the Dekker case, the Court of Justice clarified that in case of discrimination private parties cannot invoke any ground of justification envisaged by law of national origin; only the grounds provided by Union law can be invoked.14

87. In Bosman, Clean Car and Angonese the Court of Justice suggested that there is nothing that precludes private parties from invoking the grounds of justification in Article 45(3) TFEU.15 However, the grounds stated in Article 45(3) TFEU were originally adopted and formulated to serve Member States and do not seem suitable to be successfully invoked by private parties.16 However, in Angonese the Court stated that the infringement of Article 45 TFEU “could be justified only if it were based on objective factors unrelated to the nationality of the persons concerned and if it were in proportion to the aim legitimately pursued”.17 This phrasing is considerably broader than the grounds stated in Article 45(3) TFEU. It is likely that with this phrasing the Court of Justice wanted to add the possibility for private parties to justify restrictions of Article 45 TFEU. If it is indeed meant to be understood in this broad sense, it could in theory be reconciled with the balancing assessment in the context of the third ground for unlawfulness (zorgvuldigheidsnorm).18 That is, in case of clashing fundamental rights the infringement of a fundamental right of one party can, in view of the concrete circumstances of the case, be justified by the exercise of a fundamental right by the infringing party.19 In respect of infringements of Article 45 TFEU, it is conceivable that the infringing party wishes to invoke a fundamental right to justify this infringement, for example the freedom to conduct a business and freedom of contract (Article 16 Charter of Fundamental Rights). Thus far, it is unclear whether and under which conditions Article 16 Charter – or other Charter provisions – can indeed be successfully invoked by private parties to justify an infringement of Article 45 TFEU.20 As discussed earlier,21 the Court has briefly considered the possibility that private parties can justify infringements of Article 45 TFEU, but it has not crystallised the matter.22 In its own assessment in Angonese, the Court of Justice concluded that in this very case the Bank’s infringement of Article 45 TFEU could not be justified and was therefore unlawful, which conclusion is binding upon the national courts called upon in Angonese and resembling cases.23

88. All in all this means that the questions whether or not an act infringes Article 45 TFEU and whether or not there is a justification for that infringement are answered purely on the basis of Union law. When an infringement is established, the infringement by definition has an unlawful character, which opens the path to extra-contractual liability for tortious acts, which is further governed by national law. Because of the fact that Union law governs the question whether or not there is an infringement, methodologically it is correct to state that infringements of Article 45 TFEU fall within the second ground for unlawfulness – conflict with a statutory duty – and that (technically) the balancing exercise related to the duty of care is not likely to apply, because the balancing of rights and interests in the realm of the justification regime happens beforehand on the basis of Union law rather than on the basis of national liability law.24

89. Besides the unlawfulness of the (factual) act and the Schutznorm theory, other conditions for extra-contractual liability for tortious acts on the basis of Article 6:162(1) and (3) BW are that the tortious act can be attributed to the tortfeasor; that there is damage suffered by the claimant or that there is potential damage; and that there is a causal link between the tortious act and the damage suffered or threathening. In case of potential damage, the claim on the basis of Article 6:162BW can be a prohibition (verbod) or an order(gebod) in order to avoid the (further) damage to occur.25 Considering the direct horizontal effect of Article 45 TFEU and the remote chance for a private party to justify an infringement of Article 45 TFEU, there is little doubt that the infringement of Article 45 TFEU would lead to liability on the basis of Article 6:162 BW.

90. In Dekker the Court of Justice clarified that the principle of effective and real protection precludes that liability for an infringement of the principle of equal treatment is made conditional upon proof of a fault attributable to the employer.26 Article 6:162(3) BW does not require fault of the tortfeasor; a tortious act is attributed to the tortfeasor if it is committed due to his fault or a cause for which he is accountable by law or pursuant generally accepted principles.27 According to Dutch law the tortious act can be attributed to the Bank and, irrespective of Dekker, there is no way that the Bank could invoke any ground for exemption (schulduitsluitingsgronden).28

91. Generally, Dutch law distinguishes two phases in the determination of the liability to pay damages: first the conditions for liability as such are assessed and subsequently the amount of damages payable and accountable to the tortfeasor is determined.29 In respect of the first phase (establishment) a court assesses grosso modo whether a party suffered damages as a result of the tortious act that is attributable to the tortfeasor. The causality test in the first phase is, in principle, grafted on the concept of condicio sine qua non: without the tortious act this damage would not have occurred.30 In some Dutch cases it is assumed by the court that the victim of discriminatory conduct has suffered some sort of damage as a result of the discriminatory conduct and thus that there is a condicio sine qua non (Phase 1).31 Subsequently, the question arises what the concrete damage is and to what extent this damage is attributable to the tortfeasor. In the second phase, the damages are calculated more precisely (Articles 6:96 and 6:97BW) and subsequently it is assessed – on the basis of reasonableness32 – which types of damages should be attributed to the tortfeasor and which amount is payable. For victims of discrimination the second phase turns out to be more challenging than the first, because the damages suffered as a result of discriminatory conduct are not always easy to determine.33

92. From the Court of Justice’s case law it can be derived that when a Member State chooses financial compensation as a sanction for unlawful discrimination, the compensation must be adequate in the sense that it must enable the loss and damage actually sustained as a result of the discriminatory conduct to be made good in full in accordance with the applicable national rules.34 Although this case law concerns the effective judicial protection of the prohibition of gender discrimination stemming from a number of directives, it is likely that the same applies mutatis mutandis to remedies for infringements of other forms of discrimination such as discrimination on account of nationality as prohibited by Article 45 TFEU.35 As regards the question of damage, in Dutch case law on discrimination, the victim of discrimination usually claims compensation for pecuniary and non-pecuniary damages.

To start with the latter, on the basis of Article 6:106(1)(b) BW a person can claim non-pecuniary damages if his honour or reputation is harmed or if his person has been otherwise afflicted (aantasting in de persoon). For damages to be awarded it is necessary that the victim gives insight into his specific damage, which should in principle consist of psychological damage (geestelijk letsel).36 There are only a few cases in which the victim of discrimination successfully claimed non-pecuniary damages.37

As regards pecuniary damages, the claimant must prove the existence and causality of the pecuniary damages, such as expenses made or the loss of income as a result of the discriminatory conduct. In cases in which an employee was dismissed on discriminatory grounds, the pecuniary damage – loss of income – is rather obvious. However, this cannot be said for candidate-employees who, like Angonese, were not allowed to participate in a job competition on discriminatory grounds. After all, it is not certain whether they would have been hired if they had not been discriminated against in the first place. Hence, besides unsubstantial pecuniary damages,38 the question arises in what way they have suffered damages as a result of the discrimination.