The Dutch Supreme Court: a reluctant Positive Legislator?

1Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

2Tushnet 2006, p. 1242-1244.

3See e.g. Von Beyme 1988, p. 24-25.

4Kelsen 1945, p. 268-269.

5See Tushnet 2008.

6On ‘judicially manageable standards’, see Fallon 2006, p. 1274-1332.

7European Court of Justice (ECJ) judgments of 5 February 1963, Case 26/62 (Van Gend & Loos); 15 July 1964, Case 6/64 (Costa v. E.N.E.L.).

8This duty for national courts is consistently underlined by the ECJ, for example in the Colson & Kamann case (ECJ 10 April 1984, C-14/83, Jur. 1984, p. 1891). For further reading, see: Craig & de Búrca 2008, p. 305-376; Claes 2006; Arnull, Dashwood, Ross & Wyatt 2000, p. 60-83; Van Gerven 2000, p. 501-536.

9The others being the Central Appeals Court (Centrale Raad van Beroep) and the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven). For a brief account of the Dutch judicial organization, see Kraan 2004, p. 635.

10See, for instance, two relatively recent judgments of the Administrative Jurisdiction Division of the Council of State on suffrage: ABRvS 29 October 2003, JB 2004/3 (Suffrage for mentally handicapped); ABRvS 21 November 2006, JB 2004/308 (Eman & Sevinger). An interesting example of the administrative courts engaging in positive legislating provides their case law on the reasonable time requirements in judicial decisions. Departing from the clear text of the statute in question, it formulated clear rules on the basis of Art. 13 of the European Convention. See ABRvS 4 June 2008, AB 2008/229. Moreover see (in Dutch): De Poorter & Van Roosmalen 2009, p. 219-227.

11To be published in the IACL series.

12As derived from the jointly published translation of the Ministries of Foreign Affairs and the Interior (2002). A copy of this translation can be found at . There is currently a bill pending in Parliament to amend Art. 120. This ‘Halsema proposal’ aims at allowing the courts to review statutes for their consistency with most of the civil liberties mentioned in the Constitution. See Heringa & Kiiver 2009, p. 165.

13When using the term ‘statutes’, we refer to primary legislation, enacted by the national legislature, which − according to Art. 81 of the Constitution − is composed of Parliament and the government.

14Supreme Court judgment of 27 January 1961 (Van den Bergh). The courts consider themselves banned from interfering in the legislative process on the basis of procedural constitutional requirements as well. See Supreme Court judgment of 19 November 1999, NJ 2000/160 (City of Tegelen v. Province of Limburg).

15Cf. Art. 81 of the Constitution. For further research, see Heringa & Kiiver 2009, p. 103-107, supra note 13.

16The Kingdom of the Netherlands is more or less structured in a way between a federation and a confederation of states (the Netherlands, the Netherlands Antilles and Aruba). They are united by the Crown and a constitution for the federation called the Charter for the Kingdom of the Netherlands, or the Kingdom Charter (Statuut). It is relatively concise, however, compared to the constitutions of the three member states. Unquestionably, the Charter takes precedence over the national constitutions but in reality those constitutions are far more relevant in practice. Charter review is therefore something quite rare.

17Supreme Court judgment of 14 April 1989, NJ 1989/469 (Harmonisation Act).

18See, for instance, the Supreme Court judgment of 9 June 1989, AB 1989/412 (Short-term volunteers).

19Ibid.

20See the Supreme Court judgment of 16 May 1986, NJ 1987/251 (The State v. The Society for Agricultural Aviation).

21Supreme Court judgment of 6 March 1864, W 2646 (Pothuys). For further reading on the subject, see Kortmann & Bovend’Eert 2000, p. 134-135.

22Supreme Court judgment of 2 November 2004, NJ 2005/80.

23Supreme Court judgment of 3 March 1919, NJ 1919, p. 371 (Treaty of Aachen). For a further discussion, see Zwaak 2001, p. 597-599.

24See, for instance, the two Supreme Court judgments of 21 March 1986, NJ 1986/585 and NJ 1986/588 (Spring judgments) on parental authority. See further the judgment of 27 May 2005, 2005/485 (Parental authority II). We will discuss these cases at length further on.

25See, e.g., the Supreme Court judgment of 30 May 1986, NJ 1986/688 (Railway Strike); Judicial division of the Council of State, judgment of 15 September 2004, AB 2005/12.

26Ibid.

27Fleuren 2004.

28Supreme Court judgment of 12 October 1984, NJ 1985/230 (Dutch citizenship).

29See, for instance, Brouwer 1992, p. 279.

30The landmark case in this respect is the Labour expenses deduction judgment in 1999. See Supreme Court judgment of 12 May 1999, BNB 1999/271. This judgment will reappear frequently in the course of this article.

31What might have played a role, though, was that the Convention was initially rarely invoked before the courts.

32The notable exception being a judgment of the Supreme Court of 23 April 1974, NJ 1974/272.

33Van Dijk 1988a, p. 640-641.

34Alkema 1980, p. 182-183.

35See Van Dijk 1988a, p. 641-649.

36Maastricht District Court, judgment of 14 November 1977, Netherlands Yearbook of International Law 1978, p. 293. For further reading: Van Dijk 1988a, p. 641; Myjer 1980, p. 21-29.

37Supreme Court judgment of 18 January 1980, NJ 1980/463 (Illegitimate child).

38ECtHR 13 June 1979, Publ. Series-A, 13, p. 14-20 (Marckx v. Belgium).

39Supreme Court judgment of 4 June 1982, NJ 1983/32 (Parental Veto on Underage Marriage). See also the Supreme Court judgment of 20 December 1985, NJ 1987/54.

40Supreme Court judgment of 4 May 1984, NJ 1985/510 (Dual custody).

41For some discussion on this issue, see (in Dutch): Alkema’s Case Note under NJ 1985/510, and De Vet 1985, p. 218-222. In English: Van Dijk 1988a, p. 644.

42This was not the only case in which the Supreme Court was prepared to go that far. See, for instance, its judgments of 1 July 1983, NJ 1980/463 (Insanity Act); of 22 June 1988, NJ 1988/955 (Additional Tax Claim); of 24 November 2000, NJ 2001/376 (Matos v. Dutch Antilles) and of 16 November 2001, NJ 2002/469 (Pig Farming Reform Act). Especially the lower courts have reacted rather enthusiastically to this development. See the judgment of the District Court of Amsterdam dated 14 January 1992, NJ 1992/401; District Court of Maastricht, judgment of 11 February 1993, NJ 1993/728; District Court of Amsterdam, judgment of 28 November 1995, NJ 1996/564, and Leeuwarden Court of Appeal 5 February 2003, NJ 2003/352.

43Joint Supreme Court decisions of 21 March 1986, NJ 1986/585-588 (Spring decisions).

44Supra note Error: Reference source not found.

45Supra note Error: Reference source not found.

46Supreme Court judgment of 19 October 1990, NJ 1992/129 (Gay marriage); Supreme Court judgment of 10 August 2001, NJ 2002/278 (Duty of support).

47This was also very clearly illustrated by the very recent Post-Salduz and Panovits case, where the Court, on the basis of Art. 6 of the Convention, introduced the duty for police authorities to provide suspected criminals access to an attorney if they so choose (Supreme Court judgment of 30 June 2009, NJ 2009/349). Introducing this requirement was backed, however, by two judgments of the European Court, ECtHR 27 November 2008, appl. 36391/02 (Salduz v. Turkey) and ECtHR 11 December 2008, appl. 4268/04 (Panovits v. Cyprus).

48Van Dijk 1988a, p. 649.

49This was observed by Alkema in his article (in Dutch), Alkema 2000, p. 1053-1058. See also De Lange 1991.

50Van Hooijdonck & Eijsvoogel 2009, p. 39.

51See Loth 2009, p. 278.

52Ibid.

53That is even more true of the administrative courts, whose judgments are not under review from the Supreme Court. When the administrative courts follow the Supreme Courts case law they do so on an entirely voluntary basis, mainly to serve the coherence of the law in general.

54Supra note Error: Reference source not found. Moreover: Koopmans 1999, p. 124-125.

55Ibid.

56See, for instance, a contribution by former Supreme Court president Martens 2000, p. 747.

57Schoordijk 1988, p. 8-9.

58See Kelsen 1934/1992, p. 68.

59This is what German legal literature calls Gesetzesimmanente Rechtsfortbildung as opposed to Gesetzesübersteigende Rechtsfortbildung where the courts exceed such boundaries. See Larenz 1991, p. 366-367.

60For an example of this use of the term ‘lawmaking’, see Stolker 1993, p. 57. See further Bell 1985, p. 6.

61See for instance its landmark case on the interpretation of torts: Lindenbaum v. Cohen, Supreme Court judgment of 31 January 1919, NJ 1919, p. 161.

62Supreme Court judgment of 30 January 1959, NJ 1959/548 (Quint v. Te Poel).

63Supra note Error: Reference source not found.

64See, for instance (in Dutch) Kortmann 2005, p. 250.

65Although admittedly, the Advocate General had extensively gone into the matter. See the Supreme Court judgments of 12 October 1984, NJ 1985/230 (Dutch citizenship), and of 21 March 1986, NJ 1986/585-588 (Spring Judgments).

66Act of 1827 concerning the Judicial Organisation, Stb. 1827, 20, most recently amended on December 11, 2008, Stb. 2009, 8.

67Koopmans 1999, p. 131; Martens 2000, p. 747. Recognition of the lawmaking duty of the courts moreover appeared in some correspondence between the Minister for Justice and the Second Chamber of Parliament in 1989 (after the adoption of the Bill), where the minister mentioned three duties for the Supreme Court: securing the uniform application of the law, leading the development of the law and provide individuals with adequate legal protection. He marked the first two elements as a ‘the lawmaking duty’ (Kamerstukken II 1988/89, 21 206, No. 2, p. 42).

68Supra note Error: Reference source not found.

69Supreme Court judgment of 4 May 1984, NJ 1985/510 (Dual custody).

70See Van Dijk 1988b, p. 199-202.

71Supra note Error: Reference source not found.

72Alkema in his Case Note under the judgment in NJ 1986/588.

73See for instance the Supreme Court judgments of 16 November 1990, NJ 1991/475 (Paternity), and 8 July 1994, NJ 1995/30(Expert Witness).

74See para. 6.1.3 of the Advocate General’s conclusion.

75Supreme Court judgment of 15 July 1998, BNB 1998/293 (Car expenses Deduction).

76Supreme Court judgment of 30 September 1992, BNB 1993/30 (Court Fees). Fear for a heavy burden also played a role in Supreme Court judgment of 28 May 2004, NJ 2006/430 (Probationay Release).

77Supreme Court judgment of 5 September 1997, NJ 1998/686 (Double Mothers).

78See, e.g. De Wet 2008, p. 241-242.

79Supreme Court judgment of 12 May 1999, NJ 2000/170 (Labour expenses deduction).

80Supra note Error: Reference source not found.

81See also the Supreme Court judgment of 17 August 1998, BNB 1999/123 (Commercial registration number plates).

82Which basically is the Dutch citizenship line of reasoning (supra note Error: Reference source not found).

83Unfortunately, only in Dutch: See Bovend’Eert 2009, p. 151; De Werd 2004, p. 69-126.

84Already in 1993, a study showed that the reasons for the Court to refrain from positive lawmaking (or as the study called it, ‘engaging in politics in the sense of giving direction to society’), were primarily of a rather practical nature, basically boiling down to the question whether the Court would be able to regulate an issue in society. See (in Dutch) Stolker 1993, supra note Error: Reference source not found, and for a revised version Uzman & Stolker 2009, p. 475-496.

85Supra note Error: Reference source not found.

86Dicey 1885/1959, p. 3-4.

87Supra note Error: Reference source not found. This was a case in 1997, but already in 1990 the Court had mentioned its readiness to issue a remedy if Parliament did not take up the matter after the Court had expressed its concerns. See the Supreme Court judgment of 31 January 1990, NJ 1990/403 (Unreasonable delay).

88Supreme Court judgments of 24 January 2001, BNB 2001/291, and 14 June 2002, BNB 2002/289 (Labour Expenses Deduction II).

89Ibid.

90Supra note Error: Reference source not found.

91Supreme Court judgment of 2 November 2004, NJ 2005/80 (Compulsary break).

92See, for instance, ECJ judgments of 27 March 1980, Case 61/79 (Denkavit); of 30 April 1998, C-37-38/96 (Sodiprem); of 16 January 2003, C-265/01 (Pansard), and of 6 March 2007, C-292/04 (Meilicke).

93Supra note Error: Reference source not found.

94See a.o.: ECJ judgments of 15 July 1964, Case 6/64 (Costa t. E.N.E.L.), and of 9 March 1978, Case 106/77 (Simmenthal).

95See, for instance, the Simmenthal judgment in the previous footnote.

96ECJ judgments of 17 May 1990, C-262/88, (Barber v. Guardian); 1 April 2008, C-267/06 (Tadao Maruko).

97See a.o.: ECJ judgments of 27 June 1990, C-33/89 (Kowalska), and of 26 January 1999, C-18/95 (Terhoeve).

98Supreme Court judgment of 14 November 2008, BNB 2009/3 (Ilhan).

99The Judicial division of the Council of State seems to take a less rigorous stand. In the Eman & Sevinger case it did invoke the limits of its lawmaking duties in a case concerning EU law, supra note Error: Reference source not found.

100See a.o. the authors mentioned in footnote Error: Reference source not found.

101This attitude was expressed in 2000 by the parting president of the Supreme Court Martens in his farewell speech (supra note Error: Reference source not found).

102Kortmann 2005.

103Ibid.

104Van Dijk 1988b; Martens 2000; Barkhuysen & Van Emmerik 2006, p. 63.

105Supra note Error: Reference source not found. Moreover: Schutte 2009, p. 676-680.

106See, for instance, Koopmans 1999, p. 134; Martens 2000, p. 751; Brenninkmeijer 2001, p. 26; De Werd 2004, p. 120.

107See the authors mentioned in the previous footnote. Critically however: Bovend’Eert 2009, p. 142-143.

108Most recently for instance Bovend’Eert 2009, p. 143 (see the previous footnote).

109See the previous section.

110Notably Martens 2000, p. 751; Moreover Happé 1999, p. 43; Adams 2009, p. 1098.

111See the ouline drawn up by Bovend’Eert 2009, p. 140-142.

112See also Adams 2009, p. 1098.

113See e.g. Vranken 2006, p. 8-9.

114Ibid.

115Supreme Court judgment of 6 March 1864, W 2646 (Pothuys), supra note Error: Reference source not found.

116Supreme Court judgment of 24 January 1969, NJ 1969/316 (Pocketbooks II).

117Supreme Court judgment of 16 November 2001, NJ 2002/469 (Pig Farming Reform Act). Moreover see Supreme Court judgment of 14 April 2000, NJ 2000/713 (Kooren Maritiem v. the State).

118Cf. Schutgens 2009, p. 36-39.

119See a.o. the Pig farming Reform Act judgment, supra note Error: Reference source not found.

120See Supreme Court judgment of 1 July 1983, NJ 1984/360 (LSV). Moreover: Schutgens 2009, p. 78 ff.

121Ibid.

122Supreme Court judgment of 1 October 2004, NJ 2004/679 (Fauna-protection v. Province of Friesland).

123Supreme Court judgment of 21 March 2003, NJ 2003/691 (the State v. Waterpakt).

124Ibid.

125Ibid.

126Cf. Boogaard 2008, p. 478-483.

127Supra note Error: Reference source not found. Moreover, in Dutch: Bovend’Eert 2006, p. 157-177.

128See Schutgens 2009, p. 221.

129Ibid., p. 222.

130Supreme Court judgments of 18 February 2005, NJ 2005/283 (Aujeszky), and 11 October 2005, NJB 2005, p. 2106-2107 (Territorial order Nijmegen). See Schutgens 2009, p. 222-235 as well.

131Supreme Court judgment of 17 December 2004, NJ 2005/152 (OZB v. the State).

132See, for instance, Schutgens 2009, p. 234.

133See Supreme Court judgment of 22 June 1883, W 4924 (Jansen v. Heiting). See moreover: Scholten 1974, p. 137.

134See Polak 1984, p. 229-230. For criminal law, see Rozemond 1998, p. 246-268.

135See the Jansen v. Heiting case mentioned in footnote Error: Reference source not found.

136For a historical overview of the changing attitude of the Court, see Polak 1984, p. 231-244.

137Polak 1984.

138Supreme Court judgment of 27 November 1981, NJ 1982/503 (Boon v. Van Loon).

139Supra note Error: Reference source not found.

140Supreme Court judgment of 14 June 2002, BNB 2002/289 (Labour expenses deduction II).

141None of the other courts has ever fixed a specific date, but one of the three highest administrative courts, the Central Court of Appeal in social security matters did retrospectively consider once that time was up as it overruled an earlier judgment to effectively give the government some time. See, for example, its judgment of 7 December 1988, AB 1989/10 (General Widows and Orphans Act).

142Supreme Court judgment of 5 February 1997, BNB 1997/160 (Ministers’ official cars).

143The recommendation of 31 October 1991 was published in NJCM Bulletin 1992, p. 243-259.

144This is the Hammerstein report: Versterking van de cassatierechtspraak (‘Strengthening Cassation’), The Hague, 2008.

145Parliamentary Reports of the Second Chamber 2007/2008, 29 279, No. 69.

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