Leiden Law Blog

Interaction in action: the concept of the protective scope in private and public law

Interaction in action: the concept of the protective scope in private and public law

Whoever violates a statutory provision, obviously exposes themselves to the possibility of criminal prosecution or some form of administrative sanctioning. Another matter is whether such a violation also triggers civil liability. Several EU Member States, such as Germany and Austria, rely on the so-called Schutznorm doctrine in this respect. Establishing liability for the violation of a statutory provision requires, in addition to a causal link between violation and damage, the damage to be within the protective scope of the violated provision.

The Netherlands also relies on this Schutznorm doctrine and its concept of the protective scope. Curiously enough, in the Netherlands two courts in parallel decide upon the protective scope of statutory provisions. On the one hand, there’s the Dutch Supreme Court, as highest civil court. On the other hand, there’s the Administrative Court Branch of the Council of State, as the highest administrative court in cases on public authorities’ liability for unlawful legal acts. In these kinds of cases, claimants may, within certain limits, choose which court to turn to. Both courts thus may have to decide upon the protective scope of the same statutory provision. In a series of cases on the protective scope of the admission as refugee on the basis of the Aliens Act, they did just this.

Dutch case law on the Schutznorm doctrine thus provides for an interesting real life experiment of horizontal interaction between private and public law and the civil and the administrative court. Interaction in action, so to speak. In our workshop at the upcoming Leiden Law School conference on Interaction between Legal Systems we will try to get a grip on it. Please feel welcome to join us (details below). Three potential angles for discussion are:

Convergence and divergence in the case law of the civil court and the administrative court

Given that the legislator often doesn’t offer a clue, both the civil and the administrative court have quite some room to maneuver when deciding upon the protective scope of a statutory provision. How does their case law relate? We know that in a series of cases on the Aliens Act the administrative court openly announced that it would follow the land mark decision on its protective scope by the civil court. Is this convergence a good thing, or would divergence have been the better option here? And what about case law on protective scope in other fields?

The rise of ‘Luxembourg’: vertical interaction on top of horizontal interaction

In addition to potential horizontal interaction between civil and administrative court, the determining of the protective scope of statutory provision is increasingly subject to vertical interaction between the Court of Justice of the EU (CJEU) and national courts. Recently, the CJEU decided upon the protective scope of the European Directive on Environmental Impact Assessment (Leth) and the anti-cartel provision of Article 101 TFEU (Kone). In both cases, the CJEU overturned the decision on the protective scope of the respective statutory provisions of the Austrian national courts. How to assess this rise of ‘Luxemburg’ and in particular the cross over interaction that comes with it?

Potential effects of diverging procedural law regimes

The administrative court decides upon public authorities’ liability only in so far as it relates to unlawful legal acts. This means that only claimants who are admitted under administrative procedural law as interested parties to the legal act may invoke public authorities’ liability. In the civil court, under civil procedural law, no such limitation is imposed. Do these diverging procedural law regimes influence the decision of material law on the protective scope of the violated provision in the civil and administrative court and if so, what to think about that?

Please feel welcome to join our workshop at the Leiden Law School conference on Interaction between Legal Systems ‘Room for Reflection’, Wednesday 21 January 2015, 14.00-17.30h (sign up).

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