Disadvantage compensation

Disadvantage compensation can also be seen as compensation awarded as a result of the lawful actions of the government. This may be granted by the administrative court and the civil court. The lawful government actions can be divided into the following categories:

  • the power that is intended to infringe someone’s civil rights and;
  • the powers and actual actions where this is not the goal, but where the damage is a side effect.

Compensation for disadvantages is based on the principle of equality of public charges: legalite devant les charges publiques. The disadvantage that the government causes to the individual citizen should not remain for the account of the citizen, if that citizen therefore has to bear a larger share of the burdens associated with the promotion of the general interest. When society as a whole benefits from a certain government action, it is not reasonable to transfer the costs unilaterally to a single citizen. In principle, the violation of an individual interest is part of the normal social risk. This is no longer the case if the extent of the damage is greater for the citizen than his social position at that time and than he could expect from the government action.

Pure disadvantage compensation decisions

It is assumed that the disadvantage compensation decision is a decision if it is based on a statutory regulation or policy rule or extra-legally based on the principle of equality of public burdens. After all, they are all only concerned with compensation. The authority of the administrative judge to rule on these types of decisions is evident from the Metroschade case law (ABRvS 14-5-1986, 586 (metroschade Rotterdam). The administrative body is authorized to make financial payments and the policy has been sufficiently administrative body. It is not the nature of the damage-causing act that determines whether this can be used, but whether the decision has been made on the basis of the policy rules.

Independent damage decision

The right to compensation arises on the basis of the principle of equality of public burdens and is extralegal. The connectivity requirements must be met. Material or substantive connection:

  • The damage is the result of a public exercise of power
  • It’s illegal
  • It’s lawful

Formal or processual connexity

  • the court that has or would have jurisdiction in the decision in the main case also has jurisdiction in the decision on damages.

Impure or inconsistent disadvantage compensation decision

If the administrative body has not sufficiently taken into account the interests of the injured party in weighing up the interests of the decision causing damage. It therefore violates the prohibition of arbitrariness. It is independent, because the damage decision does not stand alone. It is impure because it decides not only the damages but also the exercise of the power to cause damage.