European Review of Private Law

Volume 23 (2015)

Volume 23 (2015) / Issue 4

Albert J. Verheij, 'Should Private Lawyers Reconsider the Compensatory Principle in an Age of Administrative Enforcement?' (2015) 23 European Review of Private Law, Issue 4, pp. 551–565


Abstract: Law enforcement by public authorities (sometimes called quangos) has become the dominant mode of enforcement over the last couple of decades. This article critically analyses this trend in the light of some recent scandals in the Netherlands that exposed the inefficacy of the relevant public authorities. After an overview of the reasons why law enforcement by public authorities is preferred by policymakers, two Dutch scandals that featured prominently in the Dutch press in 2014 are analysed in detail. The inefficacy of the Dutch public authorities can be attributed to various factors: (in)dependence of the public authority, lack of resources and of expertise, internal tensions within the public authority, and the fact that public authorities are monopolists. Finally, the mere existence of a public authority can have a stifling effect on enforcement activities by other entities such as consumer associations. Since these contributing factors seem to be an inherent part of the design of public authorities, it is submitted that complementary law enforcement by private entities should receive serious consideration. In that context, relaxation of the compensatory principle in tort and contract law should receive special attention. It is submitted that the arguments that are commonly raised against such a relaxation (does not fit in our system, costly, potential for abuse) are unconvincing and further debate and research should take place.

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ISSN: 0928-9801
ID: ERPL2015037