The Dutch Legal System

The Dutch Legal System

The Kingdom of the Netherlands was founded in 1813. It was part of France from 1795 until 1813, before 1795 the greater part of the current territory was governed by a confederation of sovereign provinces.

Government Structure

'Central government is a constitutional monarchy with a parliamentary system. Since 1814 there has been a hereditary monarchy occupied in turn by Kings William I, William II and William III, followed by the Princess Regent Emma and Queens Wilhelmina, Juliana and Beatrix'. 'The King is immune, ministers are politically responsible and subject to criminal law. In practice only the political responsibility of ministers has any real meaning. Legally speaking the King forms part of the government but actually it is the responsible ministers who make policy'.

Some former colonies are still part of the Kingdom: the Caribbean

islands Aruba, Curacao, Bonaire, St. Maarten, St. Eustatius and Saba. They form a federation with the parts of the Kingdom in Europe. The Charter for the Kingdom of the Netherlands forms its constitution, which has a meaning superior to the written Dutch Constitution.

The territory in Europe could be characterized as a decentralised unitary State. Legislative and administrative powers are exercised by central, regional (12 provincies) as well as local bodies (more than 500 gemeenten). There are also other bodies and agencies that have legislative and administrative powers. Examples are the openbare lichamen voor bedrijf en beroep, the zelfstandige bestuursorganen (agencies) and waterschappen (water boards).

Types of Legislation

The most important form of legislation is the legislation made by the central government in cooperation with the Staten-Generaal (Parliament, consisting of two chambres): wetgeving in formele zin (legislation in a formal sense). Lower forms of legislation are rules made by other agencies that belong to central government, such as Algemene maatregel van bestuur and Ministerie regeling, by the representative organs of provincies (these rules are called Verordeningen), waterschappen (these rules are called Keuren) and gemeenten (these rules are called Verordeningen), by zelfstandige bestuursorganen (agencies) or other openbare lichamen (public bodies).

The Court System

The Dutch judicial system can roughly be divided into two subsystems: the general system and the administrative law system. The supreme court in the general system is the Hoge Raad (Supreme Council), it deals with matters of criminal law, tax law as well as private law. The lower courts are the kantongerechten (courts for petty offences and matters of relatively small importance), the rechtbanken (general courts of first instance) and the gerechtshoven (general courts of second instance). The administrative law system has a few supreme courts: the Afdeling bestuursrechtspraak part of the Raad van State (mainly dealing with planning law as well as environmental law), the Centrale Raad van Beroep (mainly dealing with social security and civil servants matters) and the College van beroep voor het bedrijfsleven (dealing with matters of trade and economic administrative law). The Hoge Raad has administrative law tasks as well (the chamber on criminal matters deals with punitive administrative law matters, tax law is considered a form of administrative law). The courts of first instance in administrative law are the rechtbanken. In tax matters the gerechtshoven are courts of first instance, in some matters of economic administrative law only the Rotterdam rechtbank is court of first instance.

The Effect of International and European Law

In the famous Costa-Enel case (6/64) the Court of Justice of the European Community has ruled that European law is an integral part of the national legal system of the EC member countries and takes precedence over national law. Therefore one cannot fully ascertain the applicable law without researching the relevant European law. The Eur-Lex database contains, inter alia, all Community legislation in force. See also the extensive Guide to European Databases, by Mirela Roznovschi.

Another judicial institution, which is increasingly influencing Dutch law, is the European Court of Human Rights, the judicial organ of the European Convention on Human Rights.

As to the effect of general public international law in the Dutch legal order one has to look at articles 93 and 94 of the Constitution. These articles provide for the direct effect (self-execution) of provisions of treaties and of resolutions of international organizations if they are binding on all persons by virtue of their contents. When the Dutch judge rules that such a provision has direct effect, a citizen can invoke the provision in his case and the provision will then prevail over conflicting Dutch law. The question of direct effect is well explained by Brimann and Vierdag in their contribution to The Integration of International and European Community Law into the National Legal Order.

How does the justice system in the Netherlands work?

Where does the law come from?

Anyone living in the Netherlands has the right to take a matter to court. In coming to its decision, the court will base itself on various sources of law, such as statutes and treaties.

In the Netherlands we have three types of law:

Ð'* Civil law

Civil law is also known as private law. It sets out the rules governing relationships between people. Examples of civil law are the law of persons, family law, commercial law, rent law and employment law.

Ð'* Criminal law

Criminal law lays down the rules every citizen is required to adhere to. If a person breaks these rules, he is committing a punishable offence (a summary offence or a criminal offence) and, if the public prosecutor so wishes, he will be charged and will have to appear in court.

Ð'* Administrative law

Administrative law describes the rules that prescribe how government agencies are required to make decisions. Examples of government agencies are the local and provincial authorities and central government.

Local custom and conventional usage

Different parts of the country will often have their own local customs and particular occupations or professions will have different usages.