CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS

 

Martijn van Empel* and Marianne de Jong**                                                                IV A 2

 

 

 

Although the title of this paper may seem extremely broad, a very particular topic is addressed in this paper. It focuses on the extent to which the Dutch legal order recognises norms of constitutional and international law as binding not only on the legislative and regulatory authorities, but also on private parties when acting either contractually or unilaterally. In other words, it examines whether constitutional and international law can impose limits on party autonomy under Dutch law.

The paper has been divided into four sections. In the first section we will identify the material constitutional and international norms limiting party autonomy which have been applied in cases before Dutch courts concerning contracts and torts. In Section 2 we will elaborate on the manner in which these norms are being enforced before Dutch courts. The method of these norms producing effect as well as the circumstances of enforcement will be discussed. Subsequently, the non-judicial enforcement mechanisms ensuring respect for the constitutional and international limitations will be discussed in Section 3. In Section 4 finally the theoretical underpinnings for the enforcement of the constitutional and internatio­nal limitations are addressed.

 

1            Constitutional and international limitations on party autonomy

 

1.1        Constitutional Norms

 

In this paragraph we will describe whether under Netherlands law and if so, to what extent constitutional norms limit the freedom of a person (a) to enter into contracts with other private parties and (b) to take unilateral legal acts.

 

1.1.1      Public authority acting as a “private party”

 

Whilst this paper focuses on “private parties”, it should be noted that under Netherlands law it is accepted that the State and other public entities are also, subject to certain conditions, subject to the law of contracts and the law of torts, as applicable to private parties in accordance with the Civil Code.

In this regard attention should be drawn to Article 3: 14 Civil Code, according to which:

 

        “A right which a person has by virtue of the civil law, may not be exercised in violation of the written or unwrittten rules of public law.”

 

It would appear that it is the prevailing opinion that this provision is addressed not to any “person” generally, both public and private, but rather specifically to public authorities. Consequently, it may be submitted that in effect, this provision is constructed as ensuring that public authorities, also when they act under the guise of private party capacity, should fully comply with their public law duties and respect the specific public law constraints imposed upon them.[1]

An illustrative case in this regard relates to the refusal by a municipality, acting in its capacity as the owner of a theatre, to conclude a contract for a public “hypnosis-show” in that theatre. As it was established that the refusal was based on the finding by the municipality that “hypnosis as a public show would not be in accordance with the Christian faith values which in that municipality were generally shared by the population”, the Hoge Raad (Netherlands Supreme Court) ruled that this amounted to a ban on the basis of the content of the show and that it was therefore contrary to the fundamental right to the free expression of opinion, as guaranteed in Article 7 of the Constitution. (HR 26 April 1996, AB 1996, no. 372, m.o.v. Th.G.D. Rasti Rostelli”)

Again, a case where a Congresshall refused to let a room to an association which was deemed to sympathise with South African “Apartheid” gave rise to the issue as to a possible infringement of the freedom of assembly, as guaranteed under Article 9 of the Constitution. The Court found that it was relevant to the case that 30% of the share capital of the Congresshall was owned by the Municipality of The Hague, which appointed 50% of the members of the Supervisory Board. In that light the Court expressed doubts as to whether the legal relationship between the Congresshall and the association concerned could be qualified as “horizontal”. It went on to say: “If one wishes to confirm this, then one has to admit in any case a horizontal effect of the constitutional fundamental right.” On that basis an injunction was issued to waive the tortuous refusal (President Rechtbank (District Court) The Hague, 9 June 1987, AB 1987, 580).

        Another noteworthy judgment in this regard is that of the Court of Appeals Leeuwarden of 1983, in which the latter found that public authority may make use of private law (contractual) means beyond what would be allowed under its public law powers, provided it would not, had it acted on a public law basis, have acted in violation of a provision of a higher rank, such as in casu Article 10, para 2, of the European Convention of Human Rights (ECHR) (Court of Appeals Leeuwar­den, 23 March 1983, AB 1983, 336).

 

1.1.2      Private parties as such

       

As mentioned above it is generally understood that Article 3: 14 Civil Code is not addressed to private parties as such. As far as the latter are concerned, the issue has to be addressed on a different basis, therefore.

The issue as to what is the proper legal basis for the effects of constitutional and international norms, more particular fundamental human rights, on relations between private parties will be addressed in Section IV below. At this stage it seems adequate for the purpose of relating the state of affairs in practice, to refer to this as the issue of horizontal effects of fundamental human rights.

It would appear fair to say, that the courts in The Netherlands tended, through the years, to be rather reticent in their recognition of “horizontal effect”. It should be stressed, however, that this did not leave necessarily the substance of fundamental rights unprotected at a “horizontal” level. Rather, reference was made, in some instances, to general principles and an equitable balancing of interests. Examples of such approach may be found in the following cases:

 

-       It has been established that a religious congregation acting as landlord cannot refuse to renew a lease contract with a tenant on the ground that the latter has ceased being a member of that congregation. Rather than a direct reference to the freedom of religion (Article 6, Constitution) this judgment was based on an equitable balancing of interests of both sides. In this regard it should be noted that the court distinguished between a situation where a lease contract would be concluded for the first time and that of a renewal of such contract, the interest of the lessee clearly being of more relevance in the latter case as opposed to the former. (Hof (Court of Appeal) Arnhem 15-11-1958, NJ 1959, 472; Hof Arnhem 24 June 1958, NJ 1959, 473).

 

-       The freedom of education (Article 23(2), Constitution) was at issue in a case where it had been stipulated in a contract that under certain specific circumstances one party to the contract would be barred from certain teaching activities (“Mensendieck”). Again, the case was adjudged in terms of “public order and fairness” (“openbare orde en goede zeden”), rather than those of a direct applicability of the fundamental right to education as enshrined in the Constitution. (HR 31 October 1969, NJ 1970, 57, m.o.v. G.J.S.) (a second judgment by the Hoge Raad in the same litigation related to the First Protocol of the ECHR, see p.7).

 

-       On the other hand, in that same period an instance of an explicit reference to a fundamental right is to be found in a judgment of the Court of Appeals in Amsterdam of 30 October 1980 (NJ 1981, 422). In that case the court held that under the circumstances a refusal to accept an anti-Apartheid advertise­ment, was an infringement of the freedom of expression although this refusal was based on reasons related to the form, rather than to the content (“Outspan”).

 

In some other cases, the courts appeared prepared to hear argument based on fundamental rights but dismissed the claims on the facts.

Against that background it is interesting to note that at the occasion of the revision of the Constitution which entered into force in 1983, not only was a catalogue of “fundamental rights“ put into prominence at the beginning of the text of the Constitution, but also the issue of “horizontal effect” was addressed in the parliamentary discussions as a specific issue. Whilst it would seem that there was consensus as to a more flexible approach to the issue of “horizontal effect”, no clear guidelines could be distilled from the debates and the issue was in effect left to be dealt with by the courts on a case-by-case basis.

As it is, as from 1984, whilst the courts may have been more inclined to act upon a “horizontal effect” of fundamental rights, this by no means meant that this was now the dominant line. Accordingly, there is a mixed harvest of cases, some making specific reference to one fundamental right or another, others relying on the more “classic” balancing of interests within the canons of interpretation.

An instance of the former is the judgment of the Court of Appeal, Amsterdam of 17 February 1984 (NJ 1985, 96). It was alleged that the defendant Electricity company acted in tort in that it discriminated against certain migrant persons living in campers by requiring certain additional contractual guarantees as a condition for the supply of electricity to those persons. On the facts it was established by the court that there was no instance here of treating cases differently, “as would have been prohibited by virtue of Article 1, Constitution”.

On the other hand, in its judgment of 30 March 1984 (Inan v De Venhorst, AB 1984, 366) the Hoge Raad tested a claim for unfair dismissal because of absence from work for religious reasons, not directly against the fundamental right to freedom of religion, but rather assessed whether this absence could be deemed a “pressing reason for dismissal” under labour law provisions of the Civil Code.

A typical instance of judicial discretion in this regard is to be found in the Hoge Raad’s judgment on a plea to the effect that the fundamental right to a free choice of work implied that an explicit written stipulation in the labour contract would be required under the circumstances of the case. The Court held that “this view would grant to this fundamental right a wider horizontal effect than would be warranted” (HR 1 July 1997, NJ 1997, 695, Kolkman).

To wind up on this section, attention should be drawn to the sequence of judgments in what is referred to as the “aids-test case”. This related to a case of rape where the victim fearing that she might have been infected with HIV first had herself tested (with negative outcome), but was then informed that for a conclusive result she would have to be tested a second time. Not being able to face the psychological stress of a second test she then sued for the perpetrator of the rape to have himself tested, on his part, which the latter refused to do. As it is, each side in the ensuing legal battle relied for its part on the same fundamental human right enshrined in the Constitution, in respectively Article 10 (respect for private life) and Article 11 (inviolability of the human body).

 

-       In the first instance the court recognised that each side indeed could rely on those fundamental rights and that accordingly the respective interests of each side had to be weighted against each other. On that basis it found for the plaintiff (the victim of the rape). (Pres. District Court Amsterdam, 11 July 1991, KG 1991, 242; NJCM Bulletin 16.6 (1991), p. 560 e.v., m.n. A. Sas).

 

-       On appeal the Court of Appeals in Amsterdam appears to deny that in the issue of obtaining conclusive evidence on the aids-risk as a consequence of the rape the fundamental human rights of the victim of the rape are at stake, which leaves only the defendant in a position to rely on his fundamental rights not to be subjected to a HIV-test against his will. Accordingly, the action by the victim of the rape was dismissed. (Court of Appeals Amster­dam, 5 March 1992, RN 1992, 296).

 

-       On further appeal (cassation) the Hoge Raad, however, in its turn found for the plaintiff. The supreme court based itself on the finding that both sides could indeed each rely on the fundamental human rights referred to and that accordingly, in order to come to a solution of the conflict, a concession on the right of one of the opposing parties had to be accepted. Whereas the Court of First Instance had not further explicited the basis for its weighting of the interests at stake, the Hoge Raad for its part held that the concession to be required from one of the opposing parties had to be based on the principles relating to tort law under the Civil Code. More particularly, the court relied on the principle that the perpetrator of a tort-action is bound in law to limit as much he can the damaging consequences of his action. On that basis, derived from civil law, the fundamental human right of the defendant, enshrined in the Constitution had to suffer an exception in the case at hand (Hoge Raad, 18 June 1993, RvdW 1993, 136; NJ NJCM Bulletin 18-7-(1993) p. 786 m.n. L.F.M. Verhey).

 

1.2        International norms

 

In this paragraph we will address the question whether under Netherlands law and if so, to what extent international norms limit the freedom of a person (a) to enter into contracts with other private parties and (b) to take unilateral legal acts.

        With regard to this question it should be stressed in the first place that the Netherlands Constitution expressis verbis provides for the precedence of directly effective binding provisions of international treaties and of decisions of public international law organisations (Articles 93 and 94). Accordingly the Dutch courts are bound to assess the possible conflict between self executing provisions of those international law instruments and provisions of Netherlands national law. On the other hand, non-written public international law and non-self executing provisions of written public international law instruments will not be taken into account on the same basis (HR 6 March 1959, NJ 1962, no. 2).[2]

Within the context of the present paper it has been decided to leave undiscussed the impact which the law of the European Union, more particularly the law of the European Community (formerly the European Economic Community) has had on the legal relations between private parties in the Netherlands. Indeed, that body of law permeated the Dutch legal system in such detail and in such scope that any meaningful discussion would require a separate report in its own right. Just to mention two instances, both with regard to competition law as well as the labour law regime as to the equal treatment of men and women the position of private parties has been fundamentally affected by EC law as it has developed over the years. Perhaps more important in this regard is the consideration that the body of EC law does not for its effect in Dutch law, depend on the provisions of the Dutch Constitution (see Court of Justice, 5 February 1963, Case 26/62, (1993) ECR 1, (“Van Gend & Loos”) and 15 July 1964, Case 6/64, (1964) ECR 585 (“Costa/ENEL”). For that matter, the Dutch courts have generally accepted the doctrines of autonomy and supremacy of EC Law as well as the enforcement mechanisms of direct effect, conform interpretation and state liability[3].

On the other hand, attention here will mainly focus on the norms which can be derived from the European Convention on Human Rights (ECHR). As a matter of fact, it is submitted that this body of law has by now been recognised as affecting legal positions in the Netherlands on a regular basis.[4] By contrast it has been found that the International Covenant on Civil and Political Rights, with an exception for Article 26,[5] does not play a meaningful role in current develop­ments in Netherlands case law on “horizontal effect” of fundamental human rights. It has been suggested that this can be explained by the fact that contrary to the ECHR there is no international judiciary institution provided for, and that the Dutch courts apparently feel they can achieve acceptable results already on the combined basis of the ECHR, the Netherlands Constitution and general principles of Dutch civil law.[6]

 

1.2.1      The European Convention for the Protection of Human Rights and Fundamen­tal Freedoms (ECHR)

 

Whilst for obvious reasons focus here is still most frequently on “vertical” relations between private parties and public authority, also “horizontal” disputes between private parties inter se have come to be increasingly affected by those Convention-norms.

When considering now how the ECHR (including of course the Protocols attached thereto) has come to condition contract law and tort law between private parties in The Netherlands, it should be noted that we have chosen not to discuss here those provisions of the Convention which relate to family-relations, more particularly Articles 8 and 12. Indeed, whilst these are essentially private party-relations, the issues which arise in that context concern nevertheless involvement of public authorities (here also including the courts) with the public regulation of family relations. This being said the following cases may be mentioned, in a sequence according to the relevant ECHR-provisions.

 

Article 4: Prohibition of slavery and forced labour

-       In a case brought by a professional football player who found himself hindered in a transfer by the rules of the national Netherlands football league, the Hoge Raad was prepared to hear the argument based on Article 4, but rejected it on the facts (HR 17 October 1980, NJ 1981, 141).

 

Article 5: Right to liberty and security

-       It was found that within the framework of insolvency proceedings the courts, when deciding on the possible detention of the insolvent party, should weigh the interests served by the detention against the right to liberty of the person concerned (HR 2 December 1983, NJ 1984, 306).

 

Article 6: Right to a fair trial

-       Whilst insolvency proceedings are also covered by Article 6, the principle of a “public hearing” should, in principle, suffer an exception in the interest of the debtor whose insolvency is sought to be declared, unless one of the parties to the proceedings requests a public hearing and no valid grounds are advanced against such request (HR 20 May 1988, NJ 1989, 676).

 

Article 8: Right to respect for private and family life

-       It was found that the refusal by a private school to continue admission of certain pupils who refused to attend religious instruction which was a regular item of the curriculum did not amount to non-respect for private and family life within the sense of Article 8 (HR 9 April 1976, NJ 1976, 409).

-       Within the framework of insolvency proceedings certain inroads upon the respect for private life may be justified in the light of the protection of the interests of the creditors (HR 21 February 1984, NJ 1984, no. 63, p. 394).

-       Tortuous liability was found by the Hoge Raad in a case where a private individual had passed on certain damaging information on his neighbour to a public authority which thereupon stopped the payment of certain allowances to the latter. Indeed the defendant was found to have infringed the right to respect for privacy and family life and to have therefore acted in tort (HR 9 January 1987, NJ 1987, 928).

-       If it is established that the publication of a picture infringes upon the respect due to private life, this infringement then represents a “reasonable interest” within the sense of Article 21 Auteurswet (Copyright Act) on which a ban on publications can be based (HR 1 July 1988, NJ 1988, 1000).

-       The Court of Appeals, ‘s Hertogenbosch, was confronted with a dispute over a request for access to information about the identity of the parents of the applicant which information was in the hands of a social medical institution which had, at the time, assisted the presumed mother, since deceased. The Court found that it had to balance three categories of legitimate interest against each other:

 

        -    the interest of the applicant to know the identity of her parents (protected under Article 8 ECHR);

        -    the public interest to protect the confidentiality of information received in confidence by institutions such as the defendant from their patients;

        -    the interest of persons in a position such as the presumed mother to see her private and family life protected, again protected under Article 8 ECHR.

 

        The Court found that none of the three categories of interest should prevail over the two others in all circumstances. In particular, absolute protection for the right to information about the identity of the parents would have such far-reaching consequences, that such absolute protection could only be based on an explicit statutory provision to that effect (Court of Appeals, ‘s Hertogen­bosch 18 September 1991, NJ 1991, 796).

 

Article 9: Freedom of thought, conscience and religion

-       It was found in general terms that on the basis of Article 9, par. 2, it must be concluded that the law of torts can provide a legal ground or limitations upon the freedom of thought, conscience and religion (HR 5 June 1987, NJ 1988, 702).

 

Article 10: Freedom of expression

-       In a case relating to TV broadcasting of football matches the Hoge Raad found that Article 10 does not impose as such a ban on the refusal of data to the newsgathering media (HR 23 October 1987, NJ 1988, 310).

-       In a judgment of 1988 the Hoge Raad found that under certain circumstances the interests protected under Article 8 and Article 10, respectively, will have to be balanced against each other (HR 4 March 1988, NJ 1989, 361).

 

Article 2, First Protocol

 

-       In 1988, the Hoge Raad was confronted with a dispute concerning the refusal by the Maimonides Lyceum to admit a boy who was found not to qualify under the rules for admission reserved to Jewish children according to the guidelines of the Halacha.

 

        As to the impact of Article 2 First Protocol, ECHR the Hoge Raad found that "parents were entitled to respect for their choice of education based on certain principles corresponding to their religious and philosophical convictions, but do not have a right vis-à-vis a private institution which provides education on this basis, to have their children admitted to that education” (HR 22 January 1988, AB 1988, no. 96).

 

1.2.2      European Social Charter

 

In a case adjudged by the Hoge Raad, the Court relied on Article 6(4) of the European Social Charter, “on which employees and employers can rely directly” to find that under the circumstances a strike by employees of the Dutch railways was not illegal, notwithstanding certain (alleged) political overtones (HR 30 May 1986, NJ 1986, no. 688, N.S. v Vervoersbond FNV e.a.).

 

1.2.3      OECD Guidelines for Multinational Enterprises

 

Whilst as has been indicated above, it is submitted that the case of the ECHR provides sufficient illustration for the impact of international treaty norms on private agreements and tort actions under Dutch law, attention should be drawn also to the fact that under specific circumstances such impact has also been found for certain rules which on the face of it were not intended to be binding. The prime illustration of this is the so-called BATCO-case which was adjudged by the Court of Appeals, Amsterdam on 21 June 1979, (NJ 1980, 71). The Court found that the closing by BATCO Nederland of its Amsterdam factory was illegal under the circumstances and should be blocked by an injunction. Amongst the circumstances relied on by the Court, specific attention should be drawn here to the so-called Guidelines for multinational enterprises (Annex to the Declaration of 21^st June 1976 by Governments of OECD Member Countries on International Investment and Multinational Enterprises). These Guidelines provided i.a. that:

 

        “Enterprises should (¼) in the case of the closure of an entity involving collective lay-offs or dismissals, provide reasonable notice of such changes to representatives of their employees (¼) and co-operate with the employee representatives (¼) so to mitigate to the maximum extent practicable effects.”

 

As it is, the Chairman of BAT Industries (the parent company of BATCO Nederland) had gone on record as stating:

 

        “The standards they (i.e. the Guidelines) set are very much in line with our own established policies in these matters and we certainly support their efforts to have then widely applied.”

 

It was under those circumstances that the Court found:

 

        “It is not without significance that BAT Industries has accepted the OECD Guidelines as guideline for its policy. These Guidelines too provide that in a case like the one under consideration “consultations” with the representati­ves of the employees should take place. Under these circumstances, the termination by BATCO Nederland of the consultations with the unions and the works council is a serious neglect of its obligation to consult. Therefore, BATCO Nederland acted in violation of fundamental principles of responsible entrepreneurship. The decision of BATCO Nederland to close its factory in Amsterdam, taken in violation of these principles, therefore is to be considered as mismanagement and should be annulled."[7]

 

1.2.4      General principles of public international law

 

In a case which received rather wide publicity in several regards a number of agricultural enterprises in The Netherlands had sued the French Potassium Mines in the Alsace before the Dutch courts on a claim for damages for pollution of the Rhine from which they took the water necessary for the exploitation of their enterprises. At subsequent levels of proceedings this case gave rise to issues related to the impact of international law on tort liability before the Dutch courts. In the first place, it had been held in the judgment in first instance by the district court that the general principle of public international law that a state may not use its territory for activities which cause damage to another state, should find application also between private parties. Moreover it found that infringement on this general principle provided a basis for claims for damages between private parties, also. (District Court Rotterdam, 8 January 1979, NJ 1979, no. 113; 16 December 1983, NJ 1984, no. 341). This judgment was quashed on appeal, where the case was decided on the basis of Dutch national law alone (Court of Appeals The Hague, 10 September 1986, TMA 1987, 15).

 

2            The judicial function in enforcing constitutional and international norms

 

2.1        Extent of intervention by the courts

 

This paragraph deals with the extent to which national courts are expected to intervene to ensure enforcement of the constitutional and international norms limiting party autonomy.

Preliminarily we can say that the parties to a dispute can enforce the norms limiting party autonomy identified above before Dutch courts. All Dutch courts are entitled (and obliged) to apply these norms, as these norms are binding on all authorities (including courts). Moreover, for neither set of rules, constitutional or international, there are special courts or special procedures. National procedural law and national remedies are used for the enforcement and protection of constitutional and international norms and limitations.

 

2.1.1      Constitutional norms

 

Dutch constitutional law distinguishes between classic fundamental rights and liberties and social and economic fundamental rights. The first category of rights consists of directly applicable rights, which may be enforced before Dutch courts, either as a 'shield' or as a 'sword' against alleged violations. The majority of the social fundamental rights, however, cannot be invoked in court as they are considered to be instructions addressed to the public authorities.[8]

As already discussed above, before 1983 Dutch courts generally denied horizontal effect of constitutional rights.[9] However, as illustrated in the previous paragraph, in the past decades the judiciary realised constitutional norms could also be relevant in horizontal relations. Fundamental rights were enforced via the interpretation of civil law concepts, such as public order and fairness/moral (‘openbare orde en goede zeden’), and general principles, in which cases the courts often proceeded to a weighing of interests of the parties. In legal literature difference of opinion existed as to whether these kind of applications of constitutional norms qualified as horizontal effect of constitutional rights or as the effect of general principles of law.[10] During the constitutional reform of 1983 the government explicitly asserted that the rights also apply when the government is acting as a private party. It was also acknowledged that fundamental rights could also operate between two private parties. This was instilled by the idea that fundamental norms apply not only vis-à-vis the authorities but also vis-à-vis any person in society. Therefore, constitutional norms may affect the rights and obligations of (groups of) individuals vis-à-vis each other in private law. The constitutional rights and freedoms of individuals are thus protected against violations thereof by other individuals or private organisations and may be invoked against other individuals.[11]

 

Advocates of horizontal effect have also argued that since parties to a contract are their own and each other's 'legislator' fundamental rights needed to be taken into account. On the other hand, horizontal effect causes tension between the idea that every subject of law is in principle equally able to shape the legal relation as it sees fit, i.e. the freedom to enter into contracts - which may be qualified as a fundamental right in itself -, and other fundamental rights.[12] What is clear however is that the rights and obligations stemming from (other) fundamental constitutional norms may limit party autonomy, one of the tenets of private law.

In 1983 the government also widened the concept of horizontal effect. Several forms of effect, apart from direct literal application, where the constitutional norm is involved in the judicial assessment in one way or another, are considered to be horizontal. The application of the fundamental norm 'as such' (as a mandatory norm with clearly defined restrictions) is referred to as direct horizontal effect, the other variations are referred to as indirect horizontal effect. The government discerned a gliding scale of indirect application of fundamental norms ranging from fundamental norms constituting 1) a norm of instruction for the legislator to ensure in the horizontal context, 2) a factor of the interpretation of civil law concepts and open terms (such as ‘goede trouw’, ‘redelijkheid en billijkheid’ en ‘maatschappelijke zorgvuldigheid’), 3) an interest that needs to be weighed in a general weighing of interests of parties, to being 4) an expression of a legal principle which may be disregarded only in specific circumstances.[13] It was left to the courts to determine when a form of horizontal effect presented itself. The potential of the horizontal effect of fundamental norms is vast: be it in the sphere of family life, labour law, freedom of association, rent law etc.

Jurisprudence on constitutional review in the horizontal context provides us with a mixed picture, as situations in which constitutional norms play a role differ considerably. On the one hand the horizontal relation that is being reviewed may vary, from private law obligations either resulting from the law (such as tort) or from contract, to family law obligations and from relations between employees. On the other hand the standard of review varies. Although some cases attest to the acceptance of direct horizontal effect of fundamental norms, in others Dutch courts show their tendency to resolve the issue via indirect effect.[14] It is unclear why the courts recognised horizontal effect in some cases and denied it in others. Radical changes in Dutch case law after 1983 can not be discerned. No coherent conclusions can be drawn so far.

In all remedies available for individuals in order to obtain judicial protection constitutional review is possible and imperative. Dutch courts may thus adjudge the constitutional compatibility of contracts and assess whether an individual act infringing constitutional norms constitutes a wrongful act.

 

A general aspect, which is relevant here, relates to the place of constitutional and international norms in the hierarchy of norms to be applied by the courts in the Netherlands. In so far as this relates to Acts of Parliament a sharp distinction is to be made between the position of constitutional norms on the one hand and international norms, on the other hand. Indeed, whilst of course the Constitution is binding on all public authorities, according to Article 120 of the Constitution no constitutional review of Acts of Parliament by the courts is allowed for. As there is no Constitutional Court, constitutional review is indeed reserved to the legislator himself, as the emanation of the sovereignty of the people. It should be stressed that this applies only to the ultimate legislator himself, i.e. the Crown and Parliament together, and not to any form of derived or delegated legislative power. The latter, therefore, are always subject to judicial review under the Constitution (as well as under the relevant Acts of Parliament). According to the Supreme Court in the Harmonisatiewet case article 120 Constitution comprises the prohibition to review the compatibility of Acts of Parliament with unwritten (fundamental) general principles of law.[15] In an earlier case (Sproeivliegtuigen) the Supreme Court decided however that legislative acts of lower authorities could be reviewed as to their compatibility with unwritten (fundamental) principles of law.[16]

On the other hand the Netherlands Constitution has enshrined in its Articles 91 and 93 a moderate monist system. International law, written as well as unwritten law, has domestic validity and can be applied by Dutch courts without any transformation being necessary. Moreover, according to article 94 of the Constitution directly effective provisions of treaties and of resolutions by international institutions take precedence over conflicting national law. It is a moderate system because only provisions that are ‘binding on all persons’ take precedence and parliamentary ratification and publication is needed before these provisions can be applied directly before Dutch courts. Dutch courts are not entitled to question the validity of treaties. It is for the Parliament to decide whether a treaty is in conformity with the Dutch Constitution.

The restricted constitutional review of Dutch courts has stimulated the application of directly effective international human rights before the Dutch courts. When an individual is confronted with an Act of Parliament which he/she considers to be incompatible with the Constitution, he/she will have to invoke a comparable directly effective treaty provision, even if the constitutional right offers more protection.

 

2.1.2      International norms