Loyens & Loeff

Private law in relation to the public sector

Official bodies and market parties encounter each other more and more often outside the area of administrative law. In particular, when carrying out their official tasks, the authorities increasingly not only make use of the powers granted to them on the basis of administrative law, but they also make use of private law instruments in this area. The fact that official bodies participate more and more in private law legal transactions is partly because of changes to legislation which offer the authorities more possibilities to fulfill their official tasks. Thus, in the area of spatial planning the anterior operating agreement has in a short space of time become an enormously popular instrument in order to ensure that municipalities can recover their costs.

An answer to every public sector private law question

Where the authorities are involved in a private law transaction, private law of course applies, but at the same time it is necessary in any event to take account of the general principles of proper administration. Thus, private law in relation to the public sector is a special area of law on the interface of private law and public law, such that knowledge of both civil procedural law and administrative law is required. Furthermore, this area of law is not subject to general legal regulations but has in fact developed in the case law. Thus, it has been established in the case law that special rules apply to official bodies with regard to contractual obligations. These special rules are crucially important when drawing up agreements and also when deciding the basis for a specific claim or defence in the context of legal proceedings. For this reason, private law in the public sector requires special expertise. Loyens & Loeff can assist you with advice as regards both specific cooperation between a public sector party and a market party and where a dispute has arisen between such parties. We will be pleased to assist you with all public sector private law questions. This is a small selection of the activities that our team performs (and has performed) in the area of private law in the public sector:

  • Advising on the conclusion of cooperation agreements specifically focusing on major spatial developments.
  • Drawing up agreements where special arrangements are made on the manner in which specific administrative bodies will make use of their powers.
  • Conducting legal proceedings after negotiations have been broken off between market parties and public sector parties.
  • Advising on and conducting legal proceedings on compensation for damages as a result of a decision taken by an administrative body (lawful governmental action).
  • Advising on and conducting legal proceedings in the event that the expropriation instrument is used.
  • Assignment and prescription of claims against and by public sector parties.

How we work

Loyens & Loeff has a large number of specialised lawyers with the right experience and knowledge available for you, who can deal with every question on this interface between private and public law. It is also possible in this regard to work in a team with other colleagues, such as in the areas of civil procedural law, energy and real estate. Loyens & Loeff has a specialised team at the ready for you for every public sector private law question. Furthermore, Loyens & Loeff will assist you, when asked as well as on its own initiative, by keeping you informed about relevant developments by means of newsletters, publications and seminars.

For more information, please contact one of our public sector private law specialists directly.