Last week, a report was published in which the Dutch Council of State expressed critical remarks related to the scope of the reversal of the burden of proof on earthquake damages, which lead to minister Kamp presenting a new legislative proposal (Wet bewijsvermoeden gaswinning Groningen) to the House of Representatives.

Earthquakes due to gas production may cause damage to buildings and works, which can be recovered from the mining works operator. The Dutch Civil Code states that the affected party has to state the facts and circumstances and has to prove, if necessary, that the damage was incurred due to soil subsidence attributable to mining. The draft act on the safety of offshore oil and gas activities, which is pending in the Dutch Senate, provides for a reversal of the general burden of proof in future gas damage claims: all physical damage to buildings and works in the Groningen field area is suspected to have arisen from gas extraction, unless the Nederlandse Aardolie Maatschappij BV, the leading producer of natural gas in the Netherlands, proves that such damage was not caused by subsidence attributable to mining. Reversing such burden of proof strengthens the position of residents in earthquake-hit areas.

The Council of State previously queried why the burden of proof will not be applicable to damages occurred before entry into force of the legislative proposal, which has changed in the new legislative proposal. The proposal amends the draft act on the safety of offshore oil and gas activities and will, once approved, enter into force at the same time as the latter.