European Commission

 

Enforcement fiche for The Netherlands



I. ADMINISTRATIVE ENFORCEMENT
Which administrative mechanisms are available to enforce the UCP Directive?

The Authority for Consumers & Markets (De Autoriteit Consument en Markt "ACM")  is available to enforce the UCP Directive based on the provisions in section 2.2 of the Act on Enforcement Consumer protection. Its sanctions may include an administrative penalty or an order subject to a penalty (section 2.9 of the Act on Enforcement Consumer protection). The Stichting Reclame Code is also authorized to act against unfair commercial practices, as it has been appointed as an organisation with a legitimate interest based on Section 6 Act on Enforcement Consumer protection (Wet Handhaving Consumentenbescherming) and Section 1 Decree appointing organisations with a legitimate interest (Besluit Aanwijzing instanties met een rechtmatig belang). Please note that based on the Dutch Advertising Code (Nederlandse reclame code), not only consumers, but also competitors can file a complaint for the Advertising Code commission.

Who can file administrative complaints?

Complaints can be filed at Consuwijzer. Consuwijzer is constituted by the Authority for Consumers & Markets. There are no special requirements as to who should file the complaint.

Do any specific procedural requirements apply to filing administrative complaints?

Complaints can be filed at Consuwijzer by phone, e-mail or regular mail.

Do the administrative authorities have an obligation to investigate the complaint?

According to Section 2.2 Act on Enforcement Consumer protection, the ACM is responsible for enforcing provisions 6:193 Civil Code, in case of collective breaches of these provisions.

Are there any specific requirements regarding the provision of evidence to the competent authorities?

The general rules of administrative law apply.

II. ENFORCEMENT THROUGH COURT ACTION
Which court actions are available to enforce the UCP Directive?

Section 3:305 d prescribes the following specific procedure: The Court in The Hague may order the cessation of any infringement, within the meaning of Article 1.1k of the Wet handhaving consumentenbescherming (Consumer Protection (Enforcement) Act), of the statutory provisions referred to in part a of the Annex to the Wet handhaving consumentenbescherming. Furthermore, the general civil procedure against an unlawful act applies.

Who can start a court action?

The consumer as well as the ACM can start a court action.

Can court actions be initiated by competitors?

No, actions cannot be filed on the basis of the provisions of 6:193a-j BW.

Can the case be handled through an accelerated procedure?

Yes, via the procedure of 3:305d Civil code, as well as via the general civil procedure against an unlawful act by means of interim injunction proceedings.

Are there any specific requirements regarding the provision of evidence to the court?

The trader carries the burden of proof (Section 6 :193j Civil Code).

III. SANCTIONS
What are the possible civil sanctions and remedies for the infringement of the UCP provisions?

A rectification can be claimed (section 6:167 Civil Code), as well as damages (art. 6:162 Civil Code). The sanctions mentioned in section 3:305d Civil Code also apply. These include cessation of the infringement of the consumer's rights and publication of the decision.

What are the possible criminal sanctions for the infringement of the UCP provisions?

These are not applicable.

What are the possible administrative sanctions for the infringement of the UCP provisions?

An administrative penalty to a maximum of € 450.000 or an order subject to a penalty.

What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?

These are not applicable.

How can consumers get redress/compensation (e.g. through collective actions)?

Consumers can get compensation on the basis of the general provision on unlawful acts, Section 6:162 Civil Code.

Can the administrative authorities or the courts require the publication of their decisions?

Yes.

IV. OTHER TYPES OF ENFORCEMENT
Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?

The system of the Dutch Advertising Code.

Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?

Ombudsman: Only on a general level, no specific regulation.