Netherlands: Offshore Safety Directive implementation unexpectedly delayed

The implementation of the Offshore Safety Directive (2013/30/EU) into Dutch law has hit an unexpected obstacle stemming from the larger act in which the Directive is included. Back in April of this year, the Lower House of parliament adopted the Offshore Safety Directive as part of the larger Act for the Amendment of the Mining Act. However, approval of this larger act by the Higher House has proven problematic due to the inclusion of four proposed amendments to the Act, which are totally unrelated to offshore safety. For this reason, the Netherlands has not met the 19 July 2015 deadline for implementing the EU Offshore Safety Directive.

The amendments aim to improve the legal position of inhabitants of the Province of Groningen who have suffered damages en masse as a result of earth tremors caused by gas production in the Groningen Field. Under current legislation these inhabitants are entitled to compensation only if they can proof a causal link between the gas production and the existence of a defect in their house or building that has caused damages. The extensive damages caused by gas production in Groningen, the operator and the state’s delay in adequately addressing Groningen citizens’ concerns and the continued risks that the citizens perceive/experience have led to great political unrest in the Netherlands.

The four amendments at issue propose to reverse the burden of proof such that the mining company (in the case of the production of the Groningen Field – the partly state owned NAM) is required to prove that the mining activity has not caused the damages. The proposal seeks to align Dutch law with the strict liability regimes for damages caused my mining activities applicable in surrounding jurisdictions and aims to provide a more level playing field for the parties claiming damages. Unlike other jurisdictions, the Dutch Civil Code currently does not provide for a reversal of the burden of proof with regard to damages allegedly caused by mining activities.

On 1 May 2015, the responsible minister requested the Council of State (the body that advises on proposed legislation) to provide advice on the proposed amendments as the consequences of a reversal of the burden proof could be far reaching (expensive for the NAM and therefore the state). On October 13 the minister has stated that he has received the advice (which is not publicly available) and that he expects to be able to comment on the time frame for the implementation of the Directive by the end of November. It is therefore not to be expected that the Offshore Safety Directive will be implemented into Dutch law before year end.

If you would like more information on the implementation of the Directive, please contact Martika Jonk, Cecilia van der Weijden, Jacqueline Feld or Dominique van Voorst tot Voorst.