Case law by Krantz & Polak
In 2017 the Minister of Justice and Security made clear that policy conditions cannot override the Dutch Civil Code — a political confirmation of what the statute already provided.
In 2017 the Minister of Justice and Security answered a series of parliamentary questions about the way Dutch indemnity insurers handle the right of insured persons to their own counter-expert. The answers were not legally revolutionary — they confirmed what the Dutch Civil Code had already said for twenty years — but politically they were significant. It was the first time a member of government had expressly and publicly pronounced on the tension between policy conditions and mandatory law in this area.
From around 2015 onwards there had been a growing debate in the House of Representatives about the market power of indemnity insurers in claim handling. Consumer programmes such as Radar and Kassa had highlighted cases in which insured persons struggled to have their view on the scale of the damage heard. The usual route — engaging an own expert — was sometimes frustrated in practice by policy conditions which, for example, required the counter-expert to be registered with a particular register, or imposed maximum amounts on cost reimbursement without any room for exceptions.
The question on the table was simple: may an insurer, through its policy conditions, effectively strip away the statutory right to counter-expertise?
The Minister’s answer came down to three core points.
First: the statutory framework is mandatory. Article 7:959 of the Dutch Civil Code provides that the reasonable costs of establishing the loss are payable by the insurer. That provision is mandatory law to the extent that it protects insureds against unfair consumer practices — an insurer may not deviate from it to the insured’s detriment in its policy conditions. A policy clause stating “we do not reimburse expertise costs” or “we only reimburse the costs of our in-house expert” is, to the extent that it conflicts with the Civil Code, simply invalid.
Second: quality assurance is a legitimate aim, but not a blank cheque. The Minister acknowledged that insurers have an interest in the quality of the experts with whom they work — a deficient expert report costs everyone time and money. But that interest does not justify policy conditions which effectively reduce the insured’s choice to a single register or a single certified list. Quality can also be assessed ex post, for example through substantive criticism of the report.
Third: the market must put its own house in order, or the legislator will intervene. This was the politically most interesting message. The Minister pointed to the codes of conduct of the Dutch Association of Insurers and to the dispute-resolution role of Kifid, and put it to the sector that if self-regulation proved insufficient, additional legislation could be put on the agenda. Not an outright threat, but an unmistakable undertone.
The ministerial statements came in a period in which several developments converged. As early as 2015, parliamentary questions on counter-expertise practices had already been raised by the CDA. At the same time, civil proceedings were running against major insurers over the additional requirements they imposed on counter-experts — proceedings that would ultimately lead to the Court of Appeal ruling against Achmea in 2020.
In that context, the 2017 ministerial answer was not a standalone event but a link in a chain: a formal confirmation from the executive that the statute means what the statute says — and that the sector is expected to conform.
For anyone who, as an insured, runs into a policy clause or a factual conduct that appears to conflict with the statutory right to counter-expertise, this ministerial confirmation provides an additional argument. Not because a letter to Parliament has legal force of its own — a court remains the ultimate arbiter — but because it illustrates that the Dutch State takes the statutory right to one’s own expert seriously and has called on the sector to act in line with it.
In concrete terms this means that, where an insurer invokes a policy clause that restricts your free choice or the reimbursement of reasonable expertise costs, you can refer to the mandatory character of article 7:959 of the Dutch Civil Code and to the position the Minister took on the issue in 2017. Insurers know that this position exists, and as a rule — under pressure — bring their practice into line.
The 2017 ministerial confirmation was neither a legislative amendment nor a judicial ruling. But it was a signal that the political playing field and the legal playing field point in the same direction on this issue: the right of the insured to their own counter-expert is not optional, it is a norm. And policy conditions that conflict with that norm cannot override it.
A landmark ruling: the Court of Appeal of The Hague held that Achmea may not demand that its policyholders' counter-expert be registered with NIVRE.
A district court ruling that reaffirmed the statutory right to reimbursement of reasonable counter-expertise costs — and drew a sharper line around what insurers can call 'reasonable'.
A 2017 court ruling made clear that insurers refusing a claim outright on the basis of a suspicion of fraud bear the burden of proof — and that a suspicion alone is not enough.
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