For the first time since its introduction in 1952, the Goods Availability Act (Wet beschikbaarheid goederen) has been invoked. A law originally designed to secure the supply of essential goods in times of emergency. In parallel, the Enterprise Chamber of the Amsterdam Court of Appeal, at the request of European directors of chip manufacturer Nexperia, imposed civil-law interim measures affecting the company’s governance and control structure. Pim Jansen, Professor of Economic Administrative Law at Erasmus School of Law, discusses in NRC and Trouw this historic and legally complex exercise of public authority.
“The Goods Availability Act was introduced in 1952, in the context of the Cold War and post-war reconstruction,” Jansen explains. “It is intended to enable the government to ensure the availability of essential goods in an emergency or under comparable circumstances. Although concise, the Act provides far-reaching powers, allowing the government to intervene in business operations. For example, by stipulating that a company may not modify the production of critical goods without a permit. As far as is known, the Act has never before been applied, which makes the current situation exceptional.”
Between security and protectionism
According to Jansen, the application of the Act in the case of Nexperia raises important questions: “Is there truly an emergency or circumstances comparable to one? Does poor governance or the risk of strategic dependency fall under extraordinary circumstances, or does this intervention verge on economic protectionism? In the latter case, such a measure would not be legally permissible. Since the Ministry has so far provided only limited information, it remains unclear how the decision has been substantiated. The Ministry of Economic Affairs and Climate Policy has stated, however, that the parties involved can have the decision reviewed by the courts, confirming the possibility of judicial oversight.”
Two tracks of intervention
The application of the Act coincides with civil-law measures taken by the Enterprise Chamber of the Amsterdam Court of Appeal (Ondernemingskamer van het gerechtshof Amsterdam), also at the request of European Nexperia directors. The court decided to impose temporary changes to the company’s governance and control structure, formally separate from the ministerial decision, yet within the same context. “Both actions appear aimed at safeguarding the continuity and security of chip production,” Jansen notes, “which is crucial given the so-called dual-use nature of semiconductors, used in both civilian and military technologies. At the same time, the confidentiality surrounding the proceedings raises new questions about transparency and legal protection.”
Jansen expects that a court will ultimately have to determine whether strategic autonomy constitutes sufficient grounds for invoking this exceptional law, or whether the measure stretches the limits of legality. “This case may prove decisive for how the Netherlands and Europe navigate the tension between open markets and strategic autonomy,” Jansen concludes.
- More information
Lees het interview met Jansen in Trouw, of het lees het artikel in het NRC.
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