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With respect to constitutional fundamental rights review by the judiciary, the Netherlands has always been a bit of a stranger in Europe. Comparatists usually describe the way judicial review of statutes in Europe is shaped as rather different from the American system, where the Supreme Court has basically empowered itself to review the constitutionality of statutory laws.1 The authority to strike down legislation in the New World is therefore exercised by the judiciary at large and it is the highest appellate court that ultimately decides upon the matter.2 By contrast, the European tradition is closely connected to the existence of ‘Kelsenian’ constitutional courts specialized in reviewing the constitutionality of statutes and executive action.3 Such courts notably exist in for instance Germany, Italy, Austria, Spain and Belgium, but also in the relatively younger liberal democracies like Poland and the Czech Republic. Constitutional courts almost by definition engage in a critical dialogue with the national legislature. When Hans Kelsen famously described constitutional courts as ‘negative legislators’, he was referring to their power to annul acts of the legislature.4
It is at this point that the Dutch differ from most of their European neighbours. Their legal system does not involve concentrated review by a specialized constitutional court. This is largely because judicial review of primary legislation is traditionally prohibited pursuant to Article 120 of the Dutch Constitution. It is clear from the outset that this ban on judicial review reduces the need for a specialized court. One would be mistaken, however, to conclude that there is no such thing as judicial fundamental rights review in the Netherlands. Quite the contrary, Dutch courts usually subject executive action and occasionally Acts of Parliament to rigorous fundamental rights review in a way that Mark Tushnet would probably describe as ‘strong judicial review’.5 This kind of review is dispersed in the sense that it is carried out by any court in the country. They do so on the basis of another provision in the Dutch Constitution, Article 94. It contains the duty to set aside any kind of regulation – be it statutory or not – if the application of these regulations conflicts with provisions of treaty law that ‘bind all persons’, which means that they have direct effect or contain – as one might say – judicially manageable standards.6 Statutes can therefore be reviewed by the judiciary for their consistency with written provisions of international law. The gradual growth of human rights treaty systems such as the International Covenant on Civil and Political Rights (ICCPR) and, even more notably, the European Convention on Human Rights and Fundamental Freedoms (ECHR) has resulted in an increasingly self-conscious attitude of the courts towards parliamentary legislation. This is strengthened by the fact that the Dutch courts are moreover obliged to ensure the effective application of European Union law – that also contains fundamental rights – in the domestic legal order as a matter of EU law itself.7 They must therefore carefully examine whether national law is compatible with the law of the European Union and, if necessary, either construe national law consistently with EU law or set it aside if such an interpretation proves impossible under national constitutional law.8
In this contribution we will describe the way the Dutch courts have – in a sometimes rigorous, sometimes cautious and sometimes downright activist way – engaged in rights review of parliamentary legislation. As we will note, the case law of the highest courts shows a tendency to assume a positive lawmaking role in a limited number of cases. Yet, simultaneously the courts have gradually adopted a cautious doctrine to draw a line between, what they consider to be, acceptable and illegitimate judicial lawmaking. Although, as we have observed, it is not a constitutional court, our account will focus on a specific court, called the Hoge Raad(literally: ‘High Council’). It is usually referred to as the Supreme Court of the Netherlands. As the highest court in civil, criminal and taxation cases, it ultimately rules on the lawfulness and interpretation of statutory law in a majority of cases. However the Court has a very limited jurisdiction over the administrative courts. This particular field of law has its own highest courts (most notably the Administrative Jurisdiction Division of the Council of State) carrying out a similar lawmaking role.9 For the sake of clarity, we will generally limit our account here to the case law of the Supreme Court. The highest administrative courts usually follow a comparable approach and use similar terminology when it comes to their constitutional position with regard to judicial lawmaking.10
Before starting our account of the lawmaking role of the courts in civil liberties adjudication, we will touch upon the way in which fundamental rights are protected in the Dutch domestic legal order by virtue of international law. This subject will be more extensively discussed by our colleague Evert Alkema in his national report with regard to the incorporation of public international law in the Dutch legal order.11 Before we do, it is noteworthy to underline that the position of national courts within the structure of European Union law is very different from their position under the European Convention on Human Rights and the other human rights treaties. We will touch only briefly on the subject of EU law and focus mainly on the human rights treaties. After discussing the international law framework, we will proceed with a discussion of the leading cases with regard to the lawmaking powers of the courts. To that end, we will analyse some of the more activist judgments of the Supreme Court in which it has tried to judicially reform legislation on the basis of international fundamental rights review. We will also attempt to offer some flavour of the dialogue in which the Court has sometimes tried to manipulate or guide the legislature in a certain direction. From that perspective we will moreover deal briefly with some of the reactions offered by legal scholarship. We will then cover some of the more procedural aspects of the lawmaking role of the courts, such as the means and effects of judicial review of legislation. This entails a brief account of the current legal actions open to individuals challenging the validity of statutes and the specific injunctions the courts are allowed – or expressly not allowed – to issue in such cases. We will end this contribution by summarizing very briefly the different issues we encountered, thereby dealing explicitly with the questions posed by the general reporter.