106
Monica Claes
Deuxième séance de travail — Les retombées
Seen in this light, one can imagine that Dutch courts have felt relieved to
find the Court of Justice as their ally, giving them the confidence to actually
apply the new jurisdiction granted by the Constitution. In a 1962 decision, the
Hoge Raad
held as a matter of Dutch law, the question of ‘direct effect’ was
indeed one of interpretation, that could accordingly be put to the ECJ (
10
). It is
no coincidence that 10 out of the 13 first preliminary references came from the
Netherlands. This special and close relationship between the Court of Justice
and the Dutch judiciary continues until this day.
Looking now beyond the scope of EU law, the tandem between the ECJ
and Dutch courts on direct effect and primacy, has been crucial especially in
the context of fundamental rights protection. Until this day, the Netherlands
still lacks a robust judicial system of fundamental rights protection based on
constitutional rights. Fundamental rights treaties and most importantly the
ECHR hence function as a kind of substitute constitution. Dutch laws can be
reviewed in the light of the ECHR and other human rights treaties, while they
cannot in the light of the parallel provisions in the Constitution. This review
practice of the courts took off from the 1980s onwards, with the courts gain-
ing confidence to grant direct effect to treaties and to actually set aside nation-
al law for infringement of treaty provisions. The conformity of national norms
with international law is assessed in various instances: it is, of course, not just
the business of the courts. This is true also during the legislative process, when
legislation is drafted by government and debated by parliament, and when its
‘legality’ is reviewed by the Council of State. In all of these instances, inter-
national and European law can be said to have more authority and be more
efficient in guiding and limiting the government and the legislature, than the
Constitution itself. Accordingly, (some) treaties and European law are today
said to form part of the broader constitutional law of the Netherlands. The
ECHR has thus in practice become the chief document for human rights pro-
tection in the Netherlands (
11
). The Constitution, in many countries the focal
point for fundamental rights protection, seems to have become much less rele
vant in this respect in the Dutch discourse.
Strikingly, the constitutional provisions are no longer seen as relevant in
the context of EU law, which is considered to produce effects and have primacy
in the Dutch legal order by its very nature – and thus based on the reasoning
(
10
) HR 18 May 1962,
De Geus en Uitdenbogerd v Bosch
, NJ 1965/115.
(
11
) It may from now on have to compete for that position with the Charter of Fundamental
Rights of the European Union.
