The Dutch Supreme Court: a reluctant Positive Legislator?

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In the introduction to this contribution we promised to briefly summarize our findings thereby attending to the questions posed by the general reporter. In the course of our analyses we touched upon three main themes. As a preliminary point of order we gave a brief account of how fundamental rights review takes place in the Dutch legal system. The Constitution contains a bill of rights but it also bans the courts from reviewing parliamentary legislation on the basis of the Constitution. Fundamental rights review thus mainly takes place on the basis of international human rights law.

With regard to the judicial means for judicial review, it should be emphasized from the outset that the Netherlands does not have a specialized constitutional court. Fundamental rights review is both highly dispersed and general in the sense that any court is empowered to review Acts of Parliament for their consistency with self-executing provisions of treaty law in the course of general statutory interpretation. This means that there are no specific constitutional complaints available to victims of fundamental rights violations, such as the recurso de ampáro. Constitutional issues may be raised in any kind of judicial procedure but it should of course be noted that Article 120 of the Dutch Constitution prohibits the courts from reviewing the constitutionality of parliamentary legislation. With regard to violations of either the Constitution or any other provision containing fundamental rights, victims of violations may file a regular complaint in the civil courts on the basis of a general tort (Article 6:162 of the Civil Code). Consequently, no specific civil rights injunctions exist. Civil remedies typically include the award of damages and a formal declaration of the unlawful nature concerning the enactment or application of the statute in question. When courts consider a particular remedy outside the scope of their respective lawmaking duty, they may also issue a declaration to the extent that the statute in question is inconsistent with a fundamental right or liberty and leave it at that (besides awarding the victim the costs of the proceedings). Such declarations have no binding effect on the government, except when the State is party to the case at hand. However, the government generally recognizes the authority of the highest courts in legal matters and thus considers itself under a moral obligation to change the law. Although the courts may appeal to the legislature to enact legislation, they do not have any power to order either the government or the legislature to do so.

As a point of reference, we have chosen to offer an account of the role of the Supreme Court. The members of the Court do not have any ex officio powers, nor does the Court have an express power to remove and take over cases from lower courts or tribunals. As we have seen, however, the Procurator General at the Supreme Court does have the power to institute proceedings at the Supreme Court if a case is decided by lower courts and the parties are no longer in a position to appeal to the Supreme Court. Debates on the lawmaking duties and powers of the Court have resulted in proposals for a more ambitious use of this instrument. Such proposals have moreover resulted in an experiment to establish a preliminary question procedure in a limited number of cases in order to centralise and quicken the process of judicial lawmaking in the interest of uniformity and legal certainty.

We have furthermore elaborated on the Supreme Courts case law on judicial review and judicial lawmaking. As we have observed, the Court may, on the basis of Article 94 of the Constitution (or on the basis of EU law) set aside statutory provisions. Annulment is, at least theoretically, not possible as the Court’s decisions bind only the parties of the case. However courts are allowed to declare the inconsistent nature of statutes and such declarations issued by the Supreme Court come very close to an annulment in practice. Our account particularly showed that the Court is usually prepared to provide victims of human rights violations redress if such redress means setting aside the statute. Using its interpretative authority to alter and reform legislation is entirely another matter. Although the Court considers itself competent to play a modest lawmaking role, it is prepared to play that role only where it is not required to engage in political decision-making. This means that it will fill a legal gap on the basis of international human rights law only if there is just one legitimate outcome of the case, or if a specific outcome fits neatly in the existing statutory scheme. If these requirements are not met, the Court will abstain both from judicial lawmaking and accepting the claim. However, it does consider itself competent to overrule such a demonstration of restraint if it believes the legislature to be negligent. It thus only abstains for the time being.

This connects closely with our last point, concerning the effects of judicial decisions of the Supreme Court. As we have observed, the Court’s philosophy – from a purely theoretical standpoint – has always been that its case law is not a formal source of law. It binds only the parties before it. In practice, however, the judgments of the Court clearly have a binding nature, at the very least for the lower courts in its judicial columns (taxation, criminal and civil law). Again, on a purely formal basis, the judgments of the Court have only ex tunc or retrospective effects. This follows from the Court’s traditional approach that it ‘finds’, rather than creates, the law. However, in recent times the Court has adopted a more flexible view by using its practice to abstain in certain cases in order to provide the legislature with a limited period of time to remedy a particular violation. Some authors have attached the label of prospective overruling to this approach. However, the Court’s practice still shows that it is very reluctant to really enforce such a conditional overruling. Furthermore, the Labour expenses deduction case shows that the Court does not consider it necessary for the legislature to regulate the retroactive effects of a judicially declared violation.

The general impression the Dutch Supreme Court gives is that of a very prudent Court, exercising considerable restraint, at least when it comes to the question of remedies. It should be noted, however, that the Court does leave open the possibility of judicial lawmaking if it deems it necessary for an effective protection of fundamental rights. Moreover, the case law concerning fundamental rights and judicial lawmaking shows for a large part that the legislature usually pays a great deal of respect to fundamental rights. Most cases reaching the Court concern relatively minor breaches of fundamental rights provisions. The restraint the Court shows may therefore be considered to be somewhat justified. Apparently, the Dutch legislative process includes some mechanisms to ensure a reasonable degree of consistency, at least with internationally accepted human rights norms. Such mechanisms are certainly worth looking into. But that’s another story.

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