Recently the Dutch Supreme Court (ECLI:NL:HR:2017:494) ruled that a 30 year limitation period does not violate article 6 (right of access to a court) of the European Convention on Human Rights (ECHR). The fact that the European Court of Justice (ECJ) ruled that a 10 year limitation period violates the ECHR, was considered irrelevant in this respect.

Facts concerning the case

The case concerns an ex-employee who was diagnosed with mesothelioma (caused by asbestos exposure during his employment) 31 years after he left employment. Shortly after his diagnosis he passed away. After his death, his widow held his former employer liable for damages. Both the court and the appeal court ruled that the employer was not liable as the statutory limitation period of 30 years had expired.

Appeal court judgement

The appeal court (ECLI:NL:GHDHA:2015:2438) decided that, despite the fact that the ECJ ruled that a limitation period of 10 years violated the right of access to a court in the Moor and others/Switzerland case (ECJ 11 March 2014, no 52067/10 and 41072/11), this did not mean that the Dutch limitation period of 30 years violated the ECHR as well. This conclusion was based on the fact that Swiss law is different from Dutch law on this point. Amongst other things, Dutch case law of the Supreme Court (Van Hese/De Schelde, 28 April 2000) gives the option of extending the limitation period, under special circumstances, when application of it would be unacceptable according to the standards of reasonableness and fairness. Subsequently, the appeal court assessed whether the circumstances in this case gave reason to extend the limitation period. It ruled that this was not the case.

Supreme Court judgment

The widow complained before the Supreme Court that the appeal court's reasoning was incomprehensible in view of the fact that it was partially based on the case Van Hese/De Schelde, whilst the case Moor and others/Switzerland was of a later date. The Supreme Court considered that the ECJ in its Moor and others/Switzerland ruling used criteria from the case Stubbings and others/United Kingdom (ECJ 22 Oct 1996). Partly based on those criteria the Supreme Court ruled in the case Van Hese/De Schelde that the right to access a court had not been violated. Also, in the case Moor and others/Switzerland, the ECJ considered that in cases of personal injury and loss of dependency, persons should have access to a court from the moment they are able to determine the damage done to them. Given that under Dutch case law, the limitation period can be extended on the basis of the standards of reasonableness and fairness, the Supreme Court considered that the right to access a court was sufficiently protected under Dutch law. The mere fact that successfully invoking the standards of reasonableness and fairness depends on the specific circumstances of the case and that the outcome of the request is uncertain, does not mean that this right is less effective. This is in line with the need to weigh the victim’s interests against the legal protection and legal certainty interests of the party which is held liable. Therefore, the Supreme Court rejected the appeal.