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The Netherlands

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International Consumer Protection

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Abstract

Private law, administrative law, and self-regulation all play an important part in consumer protection in The Netherlands.1 Through the years emphasis has shifted, however.

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References

  1. For general information concerning the Dutch legal system, see Chorus et. al (eds.), Introduction to Dutch Law for Foreign Lawyers (Deventer, Kluwer, 2nd rev. ed., 1993) and Schuit et. al, Dutch Business Law (Deventer, Kluwer Law and Taxation, looseleaf). For consumer law, see Tijdschrift voor Consumentenrecht (TvC); see also the various yearbooks on consumer law edited by Van Delft-Baas and Hondius, Jaarboek Konsumentenrecht (Deventer, Kluwer), and the looseleaf edition Consumentenrecht. Handleiding voor de praktijk,edited by Dommering-van Rongen, Duk, and Hondius. See also Hondius, Consumer Legislation in The Netherlands (New York, Van Nostrand Reinhold, 1980). Legislation referred to in the following may be found in the Schuurman and Jordens series. Case law may be found in Nederlandse Jurisprudentie (NJ), Kort geding (KG), and Tijdschrift voor Consumentenrecht (TvC).

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  2. See Introduction to Dutch Law for Foreign Lawyers,Chapter 20. Traditionally, consumer protection has not received the greatest emphasis within this field of law.

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  3. See Introduction to Dutch Law for Foreign Lawyers,Chapter 16, Paragraph 15, and Chapter 20, Paragraph 5. See also Balkenende, Overheidsregelgeving en maatschappelijke organisaties [Government Regulation and Private Organizations] (dins. VU) (Alphen aan den Rijn, Samsom, Tjeenk Willink 1992 (summary in English).

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  4. One could view the “publieke bedrijfs organisatie” (PBO) structure, see infra, as an attempt to bring about self-regulation.

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  5. See TK 1992–1993, 23 162, Number 1.

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  6. See,e.g., for a detailed account of the battle for a regulation of unfair contract terms, Hondius, Unfair Terms in Consumer Contracts (Molengraaff Institute for Private Law, Utrecht 1987).

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  7. For a translation of the New Civil Code, see Haanappel and Mackaay, New Netherlands Civil Code I Nouveau Code Civil Néerlandais (Deventer, Kluwer Law and Taxation 1990). In this edition, one also finds an article by Hartkamp, “Civil Code Revision in The Netherlands 1947–1992”, and a select bibliography. In the preparation of this manuscript, the terminology used in the translation is not always followed.

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  8. See Introduction to Dutch Law for Foreign Lawyers,Chapter 8, Number 5.

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  9. Trade unions also provide legal assistance not only in labor law cases, but also in consumer complaints.

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  10. See Introduction to Dutch Law for Foreign Lawyers,Chapter 20, Paragraph 2, Number 5.

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  11. See Introduction to Dutch Law for Foreign Lawyers,Chapter 16 Number 31.

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  12. In 1989, there were forty boards: twenty-four industrial, two supervising industrial, thirteen product, and one supervising product board.

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  13. For example, in many important areas, enforcement is entrusted to the Inspectie Gezondheidsbescherming (of which the Keuringsdienst van Waren is an important part). As of 1986, the Inspection is part of the Ministry of Health; however, the Inspection will probably be transformed into an independent agency.

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  14. See Introduction to Dutch Law for Foreign Lawyers,Chapter 3, Paragraph 6, Chapter 17, Paragraph 5, Chapter 20, Paragraph 8. The CBB originated as an administrative Court of Appeals for decisions made by PBO-bodies. Because in various other acts the CBB was given subject matter jurisdiction as well, it now plays an important part in economic public law.

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  15. Schuurmans and Jordens, Number 128. See Introduction to Dutch Law for Foreign Lawyers,Chapter 20, Paragraph 2, Number 8.

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  16. On competition law in general, see Introduction to Dutch Law for Foreign Lawyers,Chapter 20, Paragraph 3, Number 14.

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  17. Typically, the government seeks to maintain some sort of control, which typically requires regulation; from the point of view of deregulation, the efforts to privatize are not very successful.

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  18. See Schuurmans and Jordens, Number 99-Ia. The Warenwet originally stems from 1919, but was changed in 1935. In 1988, after a long period of plans for adjustments, a major overhaul of the Act took place, by the Act of 21 April 1988, Staatsblad 1988, 358. Because of the changes, it became necessary to renumber the Articles; the Act is published in Staatsblad 1988, 360 in the renumbered version.

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  19. See Wares Act, Article 14.

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  20. Compare, however, Article 22, that provides that, by ministerial regulation, boards can be required or given authority to regulate.

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  21. The Wares Act focuses on the condition of goods, not on the parties involved in the process of manufacturing and distribution.

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  22. Wares Act, Article 13: EC Directives in this area may be implemented by way of ministerial regulation, even if the legal instruments provided by the Act would not be sufficient.

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  23. Warenwetbesluit algemene produktveiligheid, Staatsblad 1993, 499. The regulation went into force as of 29 June 1994.

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  24. See,for rules on this commission, Besluit op het College ter beoordeling van geneesmiddelen 1963.

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  25. See “Warenwetregeling aanwijzing normen electrotechnische produkten”, Schuurmans and Jordens, Number 99-Ia.

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  26. Dangerous Equipment Act, Article 2; see also Article 25a. EU Directives in this area may be implemented by way of ministerial regulation, even if the legal instruments provided by the Act would not be sufficient.

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  27. Warenwetbesluit brandveiligheid nachtkleding, Schuurmans and Jordens, Number 99-Ia. See also Warenwetregeling onderzoekmethoden brandveiligheid nachtkleding,Schuurmans and Jordens, Number 99-Ia.

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  28. Warenwetbesluit brandveiligheid nachtkleding, Articles 5 and 6.

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  29. Warenwetbesluit brandveiligheid nachtkleding, Article 3.

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  30. In force since 1 January 1992. See Schuurmans and Jordens, Number 99-Ib.

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  31. The paper Standard Terms in Insurance Policies and the Juridical Response to the Need for Consumer Protection,by John H. Wansink, Aida Genève, 2 April 1993, was used with permission of the author. For insurance, see also Introduction to Dutch Law for Foreign Lawyers,Chapter 12, Paragraph 6, and Chapter 20, Paragraph 3, Number 12, and Dutch Business Law,Chapter 27.

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  32. See Article 12 of the Ministerial Regulation Besluit op de erkende onderwijsinstellingen.

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  33. Members of the Association also are committed to the general Advertising Code, and the rules of the Code Brievenbusreclame en Huissampling concerning address files. See text at Section 4.

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  34. Code of Conduct, Articles 7 and 8; arguably, the consumer may keep such goods on the basis of Article 7:7 of the New Civil Code.

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  35. In “Consumentenrecht Handleiding voor de praktijk”, B 1150–6, examples are listed.

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  36. For case law and literature, see Onrechtmatige daad (looseleaf) VI,Number 158.4. The Articles on misleading advertisements in the New Civil Code do not apply to publishing test results; see Verkade, Misleidende reclame [Misleading Advertising] (Deventer, Kluwer 1992) (monografie NBW, Number B49), Number 25.

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  37. See HR, 9 October 1987, NJ 1988, 537 (Westerkamp Haweka - Consumentenbond).

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  38. See also Pres. Rb. ‘s-Gravenhage, 3 June 1986, KG 1986, 359 (Algemene Bond van Frisdrankfabrikanten c.s. - Consumentbond).

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  39. An illustrative case is Pres. Rb. Amsterdam, 18 September 1980, NJ 1981, 198 (Consumentenbond - Dirk van den Broek). The advertiser lost, however, because the test results were presented in such a way that it was misleading.

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  40. See,in general, Verkade, Misleidende reclame [Misleading Advertising] (Deventer, Kluwer 1992) (monografie NBW, Number B49) and Verkade (ed.), Praktijkboek Reclame-en aanduidingenrecht (PRAR) [Practice Book on Law of Advertising and Trademark] (Deventer, Kluwer) (looseleaf).

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  41. New Civil Code, Articles 6:194–6:196; these Articles were introduced in the old Civil Code in 1980.

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  42. The RCC has separate “chambers” for direct marketing and audiovisual, and two general “chambers”.

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  43. See HR, 29 March 1985, NJ 1985, 591 (Bendien-Verwet,a.k.a. Pokon-Substral).

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  44. See RCC, 17 December 1976, NJ 1977, 518 (Batco-Niemeyer); CvB, 20 January 1977, PRAR IIID,16 (Philips-Sony); RCC, 7 April 1986, PRAR IHD, 39 (Credit Cards).

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  45. The text of this Code is published in PRAR, XV, I.

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  46. See,e.g., Code brievenbusreclame, huissampling en direct response advertising.

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  47. A distinction is made between “addressed” and “not addressed”; printed matter addressed “to the occupant of this house” is considered addressed and falls - for the time being - outside of the scope of the Code.

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  48. The Code has been in force since 1 January 1993; after two years, its operation will be evaluated.

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  49. Under the general standards for “misleading”, advertisements aimed at children also will be judged differently; see Verkade, Misleidende reclaim [Misleading Advertising] (Deventer, Kluwer 1992) (monografie NBW, Number B49), Numbers 34 and 41, citing the parliamentary history.

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  50. New Civil Code, Articles 6:231 et seq.; see, on the history of the enactment, Hondius, Unfair Terms in Consumer Contracts ( Molengraaff Institute for Private Law, Utrecht 1987 ).

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  51. See Introduction to Dutch Law for Foreign Lawyers,Chapter 8, Number 23, and Jongeneel, De Wet algemene voorwaarden en het AGB-Gesetz [The Unfair Contract Terms Act and the AGB-Gesetz] (diss. VU) (Deventer, Kluwer 1991) (summary in German).

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  52. See,for the same definition of consumer, New Civil Code, Articles 6:236–6:238, 6:247, Section 4, 7:5, 7:714, and 7:857.

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  53. New Civil Code, Articles 7:1–7:38; in addition, Article 7:6 states that the rights and actions of the buyer relating to the seller’s failure to perform may not be limited; this provision refers to rights laid down in Book 6.

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  54. When this applies, in this text it will be stated in the following that “in consumer sales, this rule cannot be derogated from in standard terms”.

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  55. New Civil Code, Article 7:12, provides that the seller bears the costs of “delivery”. “Delivery” has the technical meaning of Article 7:9 and not the meaning of “transportation costs”. Article 7:12 should be read in conjunction with the rules described above, notably the rule of Article 6: 41.

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  56. See Introduction to Dutch Law for Foreign Lawyers,Chapter 8, Paragraph 1, Number 10; see Dutch Business Law (2nd ed.), Chapter XVI, Numbers 3.4 and 3.5.

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  57. New Civil Code, Article 7:28; in other cases, the prescription period for an action for payment is five years; see New Civil Code, Article 3: 307.

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  58. New Civil Code, Article 6:262; Article 7:27 provides that the buyer may suspend payment in case of claims off rights to the goods by third parties, or even in case the buyer has good reason to fear such claims will be made. See also Article 6:52, which gives the right of suspending performance of an obligation to the creditor with an exigible claim, if there is a sufficient relationship between the claim and the obligation.

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  59. New Civil Code, Article 3:115; see Introduction to Dutch Law for Foreign Lawyers,Chapter 7, Numbers 18 and 23.

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  60. New Civil Code, Article 7:15. See also,however, Article 7:19, concerning sales by public or private execution.

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  61. See HR, 29 January 1971, NJ 1971, 221, and HR, 15 November 1985, NJ 1986, 213.

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  62. These duties also play a most important role in deciding issues of dwaling,Article 6:228 (error).

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  63. Naturally, information provided by the seller may constitute an (explicit) warranty.

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  64. See also Article 6:237(b) (“grey list”), dealing with a material limitation of the content of the obligation of the user with respect to what the other party could reasonably expect, and Article 237(c) (“grey list”), dealing with a stipulation giving the user the right to perform in a materially deviating manner without allowing for cancellation.

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  65. New Civil Code, Article 7:23. See also Article 6:89, which imposes a general duty to promptly complain about defects in performance.

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  66. In the case of an explicit warranty, or of facts which the seller knew or should have luiown, notice must be given promptly after non-conformity has been discovered.

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  67. As stated, for consumer sales, this provision cannot to be derogated from. See also Article 6:237(g) (“black list”), protecting against standard terms in which statutory prescription terms are shortened to periods less than a year.

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  68. The latter can be learned from the parliamentary debate. There has been criticism, however; no case law is yet available on this issue.

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  69. New Civil Code, Article 6:86, technically does not provide for a right to cure, but it describes the circumstances under which a creditor may refuse the debtor’s offer to cure. See also Article 6:87. The debtor loses the right to cure once the creditor, by way of a written notification, has converted the debtor’s obligation to perform into an obligation to pay damages in lieu of performance. Such a conversion does not take place where the minor importance of the breach would not justify this.

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  70. New Civil Code, Article 6:267. Dissolution has no retroactive force (Article 6:269), but parties are under an obligation to undo the performance received (Article 6: 271 ).

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  71. See also New Civil Code, Article 6:237(i) (“grey list”), allowing the user to charge reasonable compensation.

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  72. See also the provisions of Article 6:236 (“black list) and Article 6:237 (”grey list“).

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  73. Two years after notification is given, all rights and defenses are prescribed, including any action which would normally be available on the basis of error. Only the right to reduce the purchase price remains available as a defense in actions for the payment.

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  74. See HR, 9 October 1992, NJ 1992, 286–289 (Maassluis-zaken).

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  75. Sellers may recover damages against previous professional sellers, so that ultimately the producer will be liable. See New Civil Code, Article 7:25.

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  76. New Civil Code, Article 6:231(a), provides that stipulations going to the essence of the performance are excluded from the rules on standard terms.

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  77. Staatsblad 1993, Number 621, see Schuurmans and Jordens, Number 107.

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  78. In specific areas, such as agriculture or rent control, devices for price regulation exist.

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  79. The most recent change is of 9 December 1991, Staatsblad 1991, 699. The revised text is published in Staatsblad 1991, 700. See also Schuurmans and Jordens, Number 107. Regulation of information on prices of services also can be made on the basis of Article 2(b); with one minor exception no such regulation has been made.

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  80. Annex I of the regulation: exemptions are made for goods such as jewelry, fabrics, airplanes, tobacco products, antiques, collector’s items, art, used goods, animals, wedding dresses, coffins or tombstones, and for sale in public (auction, market).

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  81. See Article 38, “Wet op de omzetbelasting” (Schuurmans and Jordens, Number 112).

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  82. New Civil Code, Article 3:44, Section 4, which combines elements of “undue influence” and the doctrine of economic duress (the latter has not fully developed in Dutch law).

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  83. Economic Competition Act, Article 9(e-g). Previously, collective resale price maintenance was declared generically non-binding on the basis of Article 10 of the Act.

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  84. See Introduction to Dutch Law for Foreign Lawyers,Chapter 20, at p. 396; the Consumer Credit Act (Wet op het consumentenkrediet) became law 4 July 1990 (Staatsblad 1990, 395) and (after some minor changes) went into effect 1 January 1992. See Schuurmans and Jordens, Number 109.

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  85. KB, 16 October 1991, Staatsblad 1991, 549. See Schuurmans and Jordens, Number 109.

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  86. Regulation of 6 November 1991, Staatscourant 1991, 220. See Schuurmans and Jordens, Number 109.

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  87. Bestuursadviescommissie Consumentenzaken (COCON). Consumer groups represented are Consumentenbond, Konsumenten Kontakt, Instituut voor Huishoudtechnisch Advies (IVHA), ANWB, KEMA, and VEG-Gasinstituut.

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  88. The question as to the liability of the NNI itself has rarely been discussed. See Snijders, Produktveiligheid en aansprakelijkheid [Product Safety and Liability] (diss. RUU) (Deventer, Kluwer 1987) (summary in German), at p. 244.

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  89. See Snijders, Produktveiligheid en aansprakelijkheid [Product Safety and Liability] (diss. RUU) (Deventer, Kluwer 1987) (summary in German), at p. 262.

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  90. See Snijders, Produktveiligheid en aansprakelfjkheid [Product Safety and Liability] (disc. RUU) (Deventer, Kluwer 1987) (summary in German), discussing cases dealing with construction, at pp. 204 et seq.: case law is not conclusive on the issue.

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  91. See Consumentenrecht. Handleiding voor de praktijk, B 1150–15.

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Authors and Affiliations

  1. Erasmus University, Rotterdam, The Netherlands

    Peter Klik

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  1. Peter Klik
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Editors and Affiliations

  1. Center for International Legal Studies, Salzburg, Austria

    Dennis Campbell

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Klik, P. (1995). The Netherlands. In: Campbell, D. (eds) International Consumer Protection. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4867-4_5

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  • DOI: https://doi.org/10.1007/978-94-017-4867-4_5

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