On 11 March 2014 the European Court of Human Rights (''ECtHR'') rendered an interesting decision in the matter ofMoor and others vs. Switzerland [1] (''Moor case'') regarding the limitation period of work-related asbestos claims.[2] 

In the Netherlands the ruling in the Moor case has led to Parliamentary questions concerning the applicability of the rules on limitation periods in asbestos-related cases in the Netherlands.  More specifically, it was asked whether the Dutch law on limitation periods is in conflict with Article 6 ECHR.

In the Netherlands, a distinction concerning the limitation period of asbestos-related claims can be made between (i) the "short" limitation period of five years and (ii) the "long" limitation period of 30 years.  The short limitation period provides that a right to compensation for damage is proscribed on the expiry of five years from the beginning of the day following the one on which the injured party becomes aware of both the damage and the identity of the person responsible therefor.  The "long" limitation period extends to 30 years, commencing from the day following the day on which the harmful event occurred (i.e. the exposure to asbestos dust). [3] The Dutch Supreme Court ruled that for the commencement of the "long" limitation period, the last moment of the exposure will be the trigger. When the injured party became aware of the damage is therefore irrelevant. For harmful events that occurred after 1 February 2004, the limitation period of Article 3:310, paragraph 5 of the Dutch Civil Code (''DCC'') applies.  This article provides that a right of action to compensate for damage by injury or death is proscribed only upon the expiry of five years from the beginning of the day following the one on which the injured person has become aware of both the damage and the identity of the person responsible therefor (i.e. the long limitation period does not apply and only the short limitation period should be taken into account).  Please note that most asbestos-related diseases were contracted before 2004 and therefore this limitation period does not apply to most asbestos-related claims.

In response to the Parliamentary questions, the Dutch Minister of Security and Justice (the ''Minister'') stated that the circumstances of the Moor case are not comparable with the situation in the Netherlands, since the ECtHR rendered its decision ''given the extraordinary circumstances of the underlying case''. [4] The limitation periods in the Netherlands are so different to the limitation period in Switzerland (i.e. an absolute period of 10 years), that the judgment in the Moor case cannot result in consequences for the Dutch practice.  According to the Minister, Dutch law on limitation periods concerning asbestos-related claims is therefore not in conflict with Article 6 ECHR.

Moreover, the Minister pointed out that in cases where the long limitation period of 30 years has expired, Dutch case law gives a possibility of extending the limitation period when application of it would be unacceptable according to the standards of reasonableness and fairness (Article 6:248, paragraph 2 DCC).  On 28 April 2000, the Dutch Supreme Court ruled in the matter of Van Hese/De Schelde [5] that this exceptional extension can arise when the asbestos victim could not have known that he or she was suffering from a particular disease.  To this end, the Dutch Supreme Court gave seven (non-exhaustive) points of view on the basis of which it can be determined whether or not relying on the expired limitation period is unacceptable.  According to the Minister, the Dutch Supreme Court effectively takes a similar approach to these types of situations here as the ECtHR did in the Moor case: the (scientifically proven) fact that an asbestos victim could not have known about the disease before the expiration of the limitation period should be taken into consideration.

The Minister also pointed out that in the Netherlands there is a comprehensive payments system under the Asbestos Victims Compensation Payments Regulations (Regeling Tegemoetkoming Asbestslachtoffers, "TAS") which is in place particularly for work-related asbestos victims who cannot claim damages from their (former) employer because either (i) their employer is bankrupt or untraceable; or (ii) the limitation period has been exceeded.

All in all, the Minister is of the opinion that the Moor case does not have an effect on the Netherlands because Dutch law is fundamentally different from Swiss law on this point. The Minister refers in this respect to the Dutch regime of protection which is in place for victims of asbestos-related diseases.  According to the Minister's application of this regime, which consists of a combination of the long absolute limitation period of 30 years (and, where applicable, the shorter limitation period of 5 years), the comprehensive compensation arrangements based on the TAS and the principle of reasonableness and fairness as laid down in Van Hese/De Schelde, leads to the conclusion that the Moor case does not have consequences for the Dutch legal practice.