On 24 March 2017, the Supreme Court (‘Hoge Raad’) ended the debate on the impact of the Moor/Switzerland ruling on the Dutch absolute prescription period in proceedings concerning compensations in connection with an asbestos-related illness (usually Mesothelioma) by means of its ruling in the Maersk case. The Supreme Court held that reliance on the absolute limitation period is not in contravention of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Discovery of the illness after the prescription period has ended

The long period of time between exposure to asbestos dust and the manifestation of an illness such as Mesothelioma (known as the latent period or latent time) means that a victim usually does not discover that he or she is ill until after the 30-year prescription period (the absolute prescription period as included in Article 3:310 paragraph 2 of the Dutch Civil Code) has ended. The latent time is on average between 20 and 40 years (within a bandwidth of 10 to 60 years). This means that the claim against the party that may be liable in that connection (such as the former employer) has often already prescribed when the illness is discovered.

This also held true in the Moor/Switzerland case. The ECtHR held in this matter (11 March 2014, nos. 52067/10 and 41072/11, NJ 2016/88) that the right to access to the courts within the meaning of Article 6 of the ECHR had been violated because an employer invoked the limitation period that had ended against an asbestos victim (that term was 10 years in Switzerland). It had been established scientifically that the victim could not have known about the cause of his illness until after the prescription period had ended.

The right to free access to the courts is not absolute

Since the Moor/Switzerland ruling, many victims of asbestos-related illnesses are attempting within the context of Dutch proceedings to avert reliance of prescription by the party held liable on the basis of the argument that reliance on prescription is in contravention of the right to free access to the courts laid down in Article 6 paragraph 1 ECHR.

The Supreme Court issued an opinion of this question of law in the Maersk case.

The Supreme Court confirms that it is difficult to accept from the perspective of individual justice towards the injured party that a claim prescribes while the injured party has not been able to enforce this claim, but – stated succinctly – that the absolute prescription period remains the main rule from the perspective of legal certainty and of fairness towards the party that is held liable. Deviations from this main rule are only possible in exceptional cases.

The considerations catalogue of the ruling of the Supreme Court of 28 April 2000 (Van Hese/De Schelde) thus remains up-to-date. The Supreme Court confirms in this connection that the court has to demonstrate how all seven considerations from that ruling were considered and that it is insufficient to merely consider in a general sense that ‘when considering all perspectives and circumstances’ there is, or there is not, sufficient reason for breaching the reliance on prescription.

The basic conclusion is therefore that the Moor/Switzerland ruling does not oppose the manner in which matters of prescription in Mesothelioma cases have been handled in the Netherlands since the Van Hese/De Schelde ruling. The Supreme Court considered in this connection (in legal ground 3.3.5) that the right to submit a claim is not absolute, but that it can be restricted. And furthermore:

‘However, a restriction must not prejudice the essence of the right to access to the courts and is not compatible with Article 6 paragraph 1 ECHR if it does not serve a legitimate purpose or if it is disproportionate to its intended objective. (Cf. ECtHR 22 October 1996, NJ 1997/449, Stubbings et al./United Kingdom)’.

The Supreme Court includes the following in its opinion that the restriction of the right to access to the courts is compatible with Article 6 paragraph 1 ECHR:

  • the term of the absolute prescription period (30 years in the Netherlands)
  • the important purpose of prescription (legal certainty)
  • and the possibility that prescription is not applied after weighing the considerations of the Van Hese/De Schelde ruling (which therefore implies the aforementioned matter of proportionality).

In accordance with the vision of Minister Ivo Opstelten and the lower courts

Minister Ivo Opstelten of Security and Justice indicated immediately already in 2014 (see also this article) that – stated succinctly – because the prescription period in the Netherlands is 30 years, and after that term has ended in ‘asbestos cases’, the claim has not prescribed automatically (prescription can be breached in exceptional cases), there is no inconsistency with Article 6 ECHR if prescription is invoked successfully.

This was subsequently also held by the lower courts; see for example (legal ground 4.7 of) the judgment of the Central Netherlands District Court dated 10 November 2014.

Consideration (as in Van Hese/De Schelde) is and remains necessary

The fact that the outcome of the weighing of the seven considerations from the Van Hese/De Schelde ruling (and therefore also the question whether prescription is unacceptable according to the standards of reasonableness and fairness) depends on the circumstances of the case does not mean, according to the Supreme Court in legal ground 3.3.8, that access to the courts is ‘insufficiently effective’. The Supreme Court emphasises that answering the question whether reliance on prescription can be breached in this manner

‘is in line with the need that in cases such as the present one a consideration can always be made between the interests involved for the injured party and the party sued in legal protection and legal certainty. That weighing of interests can be requested at a moment at which the injured party is actually able to determine that it sustains damage, including in the event the prescription period of thirty years has ended. In such cases, this weighing of interests is performed on the basis of considerations that enable the injured party to explain why it considers that the opportunity to continue litigation about the realisation of his claim must be offered despite the fact that the prescription period has ended. The present restriction therefore does not prejudice the essence of the right to access to the courts, it serves a legitimate purpose and it is proportionate to its intended objective.’

In short: the Dutch Supreme Court confirms the route that was taken 17 years ago when assessing reliance on prescription in ‘asbestos cases’. This is not altered by the ECtHR Moor/Switzerland ruling from 2014 as was already confirmed by the Minister and the judgments of courts of fact.

By Mascha Timpert-de Vries