Volume 24 (2016) / Issue 3/4
Abstract: Attribution of conduct almost necessarily touches upon the essence of a person, be it a private person (a natural person or a private legal person) or a public person. The result of such attribution may substantially restructure the essence of that person. Through attribution, a court moulds the person to whom the act is attributed into a shape that fits in with the court’s understanding of justice or of what a desirable result is. To prevent the ends envisioned by the court to drive it mechanically to attribute conduct to a person as if it were that person’s own conduct, a refined and balanced approach to attribution has to be adopted. The court must balance the interests of the person to whom the act is to be attributed, the interests of society as a whole, and the protection of the legitimate and reasonable expectations of third parties. With regard to the attribution of unlawful acts, the reasoning of the Supreme Court of the Netherlands in the case of Knabbel en Babbel may be a source of inspiration: The conduct of a person will constitute an (unlawful) act of another person if it is generally held in society that the conduct must be considered to be that other person’s act. Attribution of conduct of person A to person B as if it were person B’s own conduct can follow from the nature of A’s conduct and capacity, viewed against the background of relevant acts, omissions, and circumstances within the sphere of responsibility of B. Rather than proceeding on the basis of one principle that may be upheld or rejected in favour of another principle, it is advisable to start assessing attributability on the basis of all interconnected principles and interests. The assessment of attribution, which takes place in fields such as state liability, state aid, competition law, public procurement law, and the provision of Internet services, will thus reflect a broader range of arguments. Those arguments may derive from the fields of international and supranational laws just mentioned, from the branch in which a legal person is active, from private law doctrines regarding attribution (the protection of legitimate expectations within the ambit of agency law, the attribution of acts to a state, to a company, or to an employer on the basis of authority, the attribution of unlawful acts to a state, to an enterprise, or to an employer), and from human rights law. An approach is thus called for that seeks to reconcile respect for different aspects of persons: One may act as an official who observes the applicable regulations or as a person making use of one’s freedom of expression. This will improve the level of substantive justice achieved by the judgment.
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