Balancing Interests: Exploring the Tensions between General Interest and Individual Rights in the Context of Abuse of Rights in the Netherlands and Belgium

Abstract

The question of the potential role of the general interest in the doctrine of abuse of rights, has been playing a pivotal role in the debate among Belgian scholars. The specific reason for this debate is the judgment of the Supreme Court of Belgium of 21 October 2021, concerning overhanging branches of trees in a private park. (Hof van Cassatie 22 October 2021, ECLI:BE:CASS:2021:ARR.20211022.1F). In the Netherlands, on the other hand, cases like the Belgian case are more often solved via other doctrines than abuse of rights. Comparing both systems therefore leads to the conclusion that although the developments in the doctrine of abuse of rights are quite similar, the debate on the potential role of the general interests is under­developed in the Netherlands.