105
Second working session — The impact
1.
The impact of
Van Gend en Loos
in the country
of origin, the Netherlands
It is well-known that it was by no means a coincidence that the case
emerged from the Netherlands (
7
). The Dutch legal system has a tradition of
openness to international law, and in 1953 and 1956 new provisions had been
incorporated in the Constitution with the aim of allowing for a smooth par-
ticipation of the Netherlands in the process of European integration. The new
constitutional package on international relations included a provision declar-
ing that domestic statutory acts would not be applied when infringing treaty
provisions that were ‘binding on anyone’ (
8
). It was Parliament itself that in-
sisted on this constitutional amendment against the will of the Government,
who emphasized that other States did not allow for review powers in the hands
of courts, and that unilaterally granting such powers to Dutch judges, could
affect the international position of the Netherlands (
9
). It would allow judges
to meddle in foreign relations, which was essentially the province of govern-
ment. This was also how the new provisions in the Dutch Constitution, when
finally adopted, were viewed through foreign eyes. The Chicago Daily Tribune
reported on the new provisions under the heading ‘Less than a Nation’.
Despite the revolutionary constitutional provisions, Dutch judges re-
mained reluctant to actually apply them, and used the traditional avoidance
techniques: conform interpretation, denial of direct effect or solving the case
on other grounds. Hence, direct effect and primacy of treaty law were not
well-settled in the Netherlands legal thinking and judicial practice in the early
1960s, and as a consequence, Dutch judicial practice was not so different from
that in dualist states. Never before 1963 had a Dutch court actually set aside a
contrary provision of national law for the benefit of treaty law.
(
7
) For an excellent historical account see K. van Leeuwen, ‘
On Democratic Concerns and
Legal Traditions: The Dutch 1953 and 1956 Constitutional Reforms “Towards” Europe’
, 21
Contemporary European History
(2012), 357-374; see also M. Claes and B. De Witte,
‘Report
on the Netherlands’
, in A.M. Slaughter, A. Stone Sweet and J.H.H. Weiler,
The European
Courts and National Courts: Doctrine and Jurisprudence
(Oxford, Hart Publishing,
1998), 171; L.F.M. Besselink, ‘
Constitutional Adjudication in the Era of Globalization: The
Netherlands in Comparative Perspective’
, 18
European Public Law
(2012), 231-246.
(
8
) Articles 65 and 66 of the Constitution, now numbered Articles 93 and 94.
(
9
) In 1952, while the constitutional amendment was being prepared, the Government had
argued before the
Hoge Raad
against the domestic primacy of treaties and review powers in
the hands of national courts,
Hoge Raad
, 25 January 1952,
Stop te Lobith
, NJ 1952, 125, with
a comment by Verzijl.
