Dutch Legislature Research Articles

Between Legal Certainty and Doubt

The Dutch legislature has recently (2012) altered the legislation for post-conviction revision of criminal cases. The legislature aimed to improve the balance between the competing interests of individual justice and the finality of verdicts, by making post-conviction revision more accessible. In this article we describe the current legal framework for revising cases. We also study how the revision procedure functions in practice, by looking at the types and numbers of (successful) requests for further investigations and applications for revision. We observe three challenges in finding the right balance in the revision process in the Netherlands. These challenges concern: 1) the scope of the novum criterion (which is strict), 2) the appropriate role of an advisory committee (the ACAS) in revision cases (functioning too much as a pre-filter for the Supreme Court) and, 3) the difficulties that arise due to requiring a defence council when requesting a revision (e.g., financial burdens).

Do Parenting Plans Work? The Effect of Parenting Plans on Procedural, Family and Child Outcomes

The Dutch legislature obligated divorcing parents to draw up a parenting plan when they divorce because it believed such a plan to be beneficial for reducing procedural and family-related problems, and ultimately increasing child well-being. In this study, the authors evaluate the effectiveness of the parenting plan for both procedural, family and child outcomes simultaneously, using a natural experiment. They use recent survey data from the Netherlands (n 1,470) and make a distinction between parents who divorced prior to the 2009 divorce law and those who divorced after its enactment. The implementation of the mandatory parenting plan encouraged more parents to document their agreements in writing. These written arrangements are found to be more comprehensive and are updated more often after the 2009 divorce law. With respect to the other procedural outcomes no difference with the situation before the change of the law is found. Findings regarding parental conflict are mixed, post-divorce tension increased after the 2009 divorce law, whereas extreme occurrences of parental conflict decreased. No differences are found in the level of parental contact. Additionally, the parenting plan is not found to affect child well-being, both directly and mediated through procedural and family outcomes. Most of these findings may be attributed to the fact that prior to the 2009 law reform many divorcing parents already made written arrangements regarding their children. Suggestions for further research regarding the parenting plan and possible other implications are discussed.

Bending the Rules: A Dutch Approach to Improving the Flexible Application of Environmental Standards

AbstractEnvironmental standards should not be a hindrance for economically relevant projects — especially in the fields of sustainability and green energy. Therefore, the Dutch legislature implemented experimental instruments in the Crisis and Recovery Act to improve the flexible application of environmental standards. They did this by allowing competent authorities to deviate from these standards. This article analyzes this Dutch approach, which can be characterized as “bending the rules.” Are these instruments legally sound and how are the relevant provisions applied in practice? Dutch government is currently working on a fundamental change of the system of environmental law with a new Environment and Planning Act. Should this new system of environmental law include a general permanent provision to deviate from environmental standards? This article provides environmental scholars with some lessons that can be learned from the Dutch Approach.

Unfair Contract Terms and the Consumer: ECJ Case Law, Foreign Literature, and Their Impact on Dutch Law

Summary: In the late twentieth century, most European states have adopted legislation on unfair contract terms. The Directive 93/13/EEC on unfair terms in consumer contracts has effectively made the European Court of Justice (ECJ) the final arbiter in interpreting much of this legislation. The present paper explores the impact which the ECJ case law and foreign legal writing has had in an individual Member State, that is, the Netherlands. Seven issues are highlighted. (i) First, especially in the United States, information requirements as to contract terms have been investigated and found wanting. Although it must be conceded that not every consumer will read the small print even when enticed by the legislature to do so, this paper submits that such requirements do have some value. (ii) Contra proferentem interpretation is one of three age-old weapons against unfair contract terms; but, unlike the common law, Dutch law has not made much use of it. (iii) Dutch law has used the overt control over the introduction into the contract and the content of standard contract terms, but the result is of little use to guide parties, attorneys, and judges. Dutch case law, unlike that in Germany, is so much attuned to the circumstances of the case that it hardly establishes useful precedents. (iv) One of the first cases on unfair contract terms decided by the ECJ, the Océano case, caused a major discussion in the Netherlands. Should the Dutch legislature step in and change the sanction of avoidance or nullification into that of considering an unfair term not binding, or should the consequences of ex officio avoidance or nullification be left to the existing statutory provisions? The Hoge Raad eventually came to terms with Océano and the following ECJ case law in Heesakkers v. Voet. (v) An issue with regard to which Dutch courts have not yet had the opportunity to tie in with the case law of the ECJ is the problem of geltungserhaltende Reduktion, rejected in the Banesto case, which is in line with German case law. Until Banesto, Dutch case law had in fact accepted the device of geltungserhaltende Reduktion. This paper strongly supports the approach applied by the ECJ and German case law. (vi) Dutch law does not extend the control of unfair contract terms to the main subject matter. This is in line with the EC Directive and the case law of the ECJ (Kásler), and it is an expression of the rejection of the iustum pretium doctrine. The Nordic experience with handling unfair contract terms, without the exception for the main subject matter, demonstrates that the exception is not necessary. (vii) Finally, with regard to enforcement, the Dutch experience shows some surprising discrepancies with that in Germany. The two models may be described as the Dutch poldermodel and the German ‘battle’ model. The final paragraph sets out the conclusion of the foregoing analysis. In dealing with unfair contract terms, a collective approach should be favoured. Indeed, the Unfair Contract Terms Directive itself directs Member States to do so. Unfortunately, this is hidden for practitioners, because their understanding of the Directive will usually be limited to the part which has been transposed into national legislation, and the national legislation usually does not include the relevant provisions of the Directive. Also, it may be argued that a collective breach needs a collective remedy. This has been illustrated by two issues concerning unfair contract terms. The first one is the validity or invalidity of exemption clauses in standard terms. A second example is the question of the (in)validity of an arbitration clause in standard building terms.

Alles naar wens? Observaties naar aanleiding van het conceptwetsvoorstel ter aanvulling van het spreekrecht voor slachtoffers en nabestaanden in het strafproces

Since 2005, Dutch victims of serious crime have the right to make an oral statement in court (‘spreekrecht’). In the past decade, the Dutch criminal justice system has accommodated this right to make an oral statement with regard to the consequences of the crime; no major problems have occurred. Indeed, only a minority of the victims consumes this right (ca. 230 cases annually), the majority prefers to lodge a written statement. Nevertheless, the Dutch legislature is of the opinion that the right to make an oral statement should be extended and has lodged a draft-proposal recently. The aim is to provide crime victims a right to put forward an advice to the judge at the trial session, such an advice relating to the full scheme of judicial decision-making (truth, legal qualification, punishment). Such a provision resembles a Victim Statement of Opinion, used in the American scheme of justice, and even exceeds this. The draft has been met with criticism, only the Dutch Victim Support is in favor. One of the objections heard is the one dimensional focus underlying the draft: by focusing on a specific group of victims – those who have suffered from serious crimes – the legislature neglects the heterogeneous nature of victims’ needs.

Positive Positive Law: A Dworkinian Move in Dutch Environmental Law

This paper starts with the practice of spatial development, and with legal practice, to come up with three reasons why a new environmental act is necessary. The Dutch legislature is working on that these years and in its commission we’ve been looking for change within environmental law. Our first step is to use the principles of law to move away from the current dominance of written law. Second step is to introduce the possibility to trump written law with the principles of the law, because that’s not permitted within Dutch law at this moment. We bring this as a positive bonus: only the initiator of a project that enhances the quality of the environment, may ask to put aside a written rule. The principles of law are here to help justify the decision to put aside a written rule. To enhance this we take our third step: we introduce the principle of positive proportionality. With that we put emphasis on the interests that will benefit from a project. We think that both the positive bonus and benefits should be part of legal reasoning since they can balance the right decision. This brings us to the thesis of positive positive law that gives benefits a place in legal argumentation. To argue for this we will make use of the work of Ronald Dworkin. We end with our suggestion for a set of rules for the New Environmental Act.

New Animal

New Animal Douglas Watson (bio) Click for larger view View full resolution One day in Holland a new animal was invented. It was a miniature racehorse with a jet-black coat and, supposedly, a docile nature—the perfect horse for children to ride. Watching it gambol about the laboratory for the first time, Van Roost, the junior of the two scientists who had produced the creature, felt his face relax into a grin. The horse was his first breakthrough as a professional scientist. Soon the Dutch premier was on the phone, offering congratulations, and in bed that night Van Roost’s girlfriend, a public-interest lawyer from Luxembourg, acted five or ten percent fonder of Van Roost than she ever had before. Van Roost hoped that she might now leave her other boyfriend and devote herself exclusively to him. It was a good time to be alive, Van Roost thought. Which, if true, did not apply for long to the miniature horse’s very first rider, a seven-year-old named Greta who, when the horse threw her, sailed twisting through the air and landed in the worst way and broke her neck. [End Page 51] All of Holland went into an uproar. Protesters encircled the laboratory and demanded that the horse be euthanized. This demand was soon met—by a sobbing Van Roost—but the horse’s demise sparked the ire of a different brand of protester. By day three of the turmoil, the premier had tightened child-safety regulations, the Dutch legislature had proclaimed that humans ought not to play god with animals, and the European Parliament had reprimanded Holland, saying its legislature lacked the authority to weigh in on so lofty a matter. Then came the girl’s memorial service, attended by neither Van Roost nor the senior scientist. Both men ought to have been there—public-opinion polls were clear on that point—but the opinion of the police had been that their safety could not be guaranteed. Van Roost stayed at home the day of the service with the blinds drawn and a recording of tropical surf playing on an endless loop. Just when it seemed as though the furor over the girl’s death would never die down, it did. A few days after the memorial service, some new scandal, something to do with finance or a crashed plane, diverted the public, leaving Van Roost to confront, for starters, the unprecedented difficulty he was having making love to his girlfriend. They tried all kinds of positions, some from Luxembourg, some from Holland, some from other EU countries. Nothing worked, not even the position his girlfriend called the raptor. Finally one day she told him that she had decided to devote herself completely to her other boyfriend. “What about me?” Van Roost said, and then he thought how pretty she was when she smiled sadly and apologetically and a little bit impatiently. The next day, an EU regulatory commission scolded Van Roost and the senior scientist for their “negligence if not outright recklessness” and suspended for one year their scientific licenses. Muttering that the girl’s death hadn’t been their fault, the senior scientist packed his bags and emigrated to America to work for a pharmaceutical company. But it was our fault, Van Roost said to himself. The bureaucrats indicated that he could spend his year away from science either doing community service or studying philosophy at the university in the town where he lived. Van Roost, who didn’t know any better, chose the latter course. The first philosopher he was asked to read was a Scot named David Hume. Hume was, or had been, at pains to prove that it couldn’t be proved that the sun, on any given day, was a whit more likely to rise than not to rise. What nonsense! Van Roost thought as he slammed the book closed. Many nights, instead of doing the required reading, Van Roost would open a bottle of red wine and sit in his kitchen rereading the newspaper stories he’d clipped about the girl who’d died. Greta. Though just seven, she had already begun a serious study of the flute...

The Fortuyn Effect revisited: How did the LPF affect the Dutch parliamentary party system?

The List Pim Fortuyn (LPF) is a key example of a family of new right-wing parties that, according to many observers, have had a strong effect on European party systems. This article studies the effect of the entry of the LPF into the Dutch Parliament on the parliamentary party system. The article looks at two aspects of the party system: first, did the LPF affect the issue agenda of the legislature? And second, has the LPF been able to create a new significant line of conflict in the legislature, as Kriesi and Frey and Pellikaan et al observed for the electoral arena? Or, as Van der Brug and Bale have proposed, is the Dutch party system after Fortuyn essentially one-dimensional? The study looks at new, behavioral, data from the Dutch legislature: parliamentary voting behavior and the sponsorship of motions, to answer these questions. It employs Poole's Open Classification method to understand the patterns underlying voting behavior.

Legal Reform on Behalf of Victims of Crime: The Primacy of the Dutch Legislature in a Changing International Environment

The past 25 years mark a period of transition in Dutch criminal procedure. A quarter century ago, victims of crime had a very limited role to play in the framework of criminal justice. The situation was governed by the Code of Criminal Procedure, which entered into force in 1926. This Code more or less ‘intrumentalised’ the position of the victim. He was allowed to report the crime and to act as a witness. In these capacities the victim could assist the government in successful law enforcement. Not unlike the situation in other countries, the victim could fairly be described as ‘the forgotten party’ in the criminal justice system. The only set of personal rights the victim was granted concerned the so-called ‘adhesion procedure’. The victim was allowed to file a civil claim for damages against the offender, and this claim could be dealt with in the course of the criminal trial. Because the legislator did not tolerate the civil dispute on damages to dominate the trial, several measures were taken to marginalize this instrument. The claim could not exceed a maximum amount of approximately 700 euro’s; and the victim had relatively few powers to prove his case. For instance, he did not have the right to call witnesses and experts to document his claim. There is little systematic empirical information available on the success rate of this adhesion procedure. Anecdotal evidence suggests, though, that some major problems frequently affected the effectiveness of the procedure in a negative way. One is that the victim usually was not informed of the date and the venue of the trial of ‘his’ offender. Since the claim had to be filed during the public trial, this lack of information effectively blocked any opportunity for success. A second main impediment was that in case the court actually granted the claim for damages, the court order to that effect had to be executed by the victim himself. More often than not, that left the victim empty handed at the end of the day. All of this has changed dramatically during the past quarter century. We will describe and analyze these developments in the following sections. First we will outline some international legal instruments on victims’ rights which have contributed to domestic law reform (section 2). Then we will point to a first wave of reform in our country, which consisted of the introduction of administrative guidelines protecting victims’ interests (section 3). Subsequently we will deal with the second wave of reform: the so-called Terwee-Act of 1992/1995 (section 4). The final parts of this contribution are about the introduction of the oral victim impact statements in 2005 (section 5) and the Victims’ Rights Act 2009 (section 6). Section 7 contains some general conclusions.

Regulatory Disclosure of Offending Companies in the Dutch Financial Market: Consumer Protection or Enforcement Publicity?

Regulatory disclosure of names of offending companies is increasingly popular as an alternative to traditional command and control regulation. The goals and intended effects of disclosure are not always clear, however. Do regulators wish to increase their transparency, or do they intend to name and shame? This article aims to contribute to a better understanding of the underlying working mechanism of regulatory disclosure of offenders' names through a case study of the Dutch Authority for Financial Markets' disclosure policy. It distinguishes two types of disclosure strategies: consumer oriented and firm oriented. The case study shows that although informing consumers was the primary purpose of disclosure as intended by the Dutch legislature, the purpose in practice has shifted to informing companies about the regulators' enforcement policy. The nature of the disclosed information makes it unlikely that disclosure adequately prevents financial risk taking by consumers. Instead of empowering consumers, disclosure has been incorporated in a traditional deterrence logic, turning out not to be an example of new governance but instead a modern version of command and control enforcement publicity.

Judicial Protection in the Field of Public Procurement: The Transposition into Dutch Law of Directive 2007/66/EC Amending the Remedies Directives

Public procurement procedures in the EU are coordinated by Directives 2004/17/EC and 2004/18/EC. The acquis communautaire provides minimum requirements for review procedures against public procurement decisions in order to ensure access to effective remedies for economic operators. These minimum requirements are established in Directives 89/665/ EEC and 92/13/EEC and recently amended by Directive 2007/66/EC. The Helby report identified several substantive concerns over the Dutch proposal on the implementation the of the Remedies Directive; Wet implementatie rechtsbeschermingsrichtlijnen. Although the transposition target date has not been met, the Dutch legislature has succeeded to transpose Directive 2007/66/EC into Dutch law while addressing the concerns of the Helby report.

The Complexity of Transnational Law: Coherence and Fragmentation of Private Law

It is generally acknowledged that legal rules increasingly flow from different (national, European and supranational) sources. It is equally well established that this multiplication of sources deeply disturbs our idea of law as a coherent and unitary system. The aim of this contribution is to explore this increasing complexity for the field of private law. One aspect of this complexity is an undeniable fragmentation of law. This paper (written as the Netherlands report for the XVIIIth International Congress of Comparative Law 2010) pays special attention to how fragmentation of private law is perceived in the Netherlands and which strategies are adopted to remedy the problems it causes. The approach of the Dutch legislature in dealing with this fragmentation is to try to re-establish a coherent system. This is apparent from both the ways in which European directives are implemented and from the Dutch efforts to deal with the increasing complexity of private international law. European directives are implemented as much as possible inside the Dutch Civil Code in order to keep the private law system intact, even though this cannot take away the causes of increasing incoherence. Also the disperse rules on private international law are structured in a new Book of the Civil Code, even though it is no longer in the power of the national legislature to create a coherent system. This strategy of the Dutch legislature is clearly wrong because it is no longer in the power of a national legislature to create a coherent system through legislation. We should therefore seek new strategies to deal with the various legal regimes that exist on a national territory. The paper explores several of these strategies.

The proposed Dutch Football Law and lessons learned from the English approach to spectator violence associated with football

New legislation to combat football hooliganism in the Netherlands is about to become law. The proposed legislation has passed the Second Chamber of Parliament and is currently awaiting approval from the First Chamber of Parliament. This new legislation will most likely enter into force before the end of 2009. This paper presents an in-depth study of the history of the Dutch proposal and how it gives mayors and prosecutors far reaching powers to control football hooliganism. Central among these powers are the Stadium and Vicinity Ban and the Reporting Duty that can be handed out to known and suspected hooligans. This paper presents a comparative study of the proposed Dutch legislation and the English Football Spectators Act. This paper will specifically look at how some of the controversial aspects of the English legislation have been dealt with in the Dutch proposal. In conclusion, the author will argue that the Dutch legislature has remedied most of the deficiencies of the English legislation.

The effectiveness and efficiency of corporate insolvency law—part two

AbstractLittle empirical research has been done in the Netherlands (or internationally) into the effect of corporate insolvency proceedings. The Dutch legislature has made several attempts in the past decades to revise the current Dutch Bankruptcy Act (Faillissementswet) of 1893, while almost nothing is known about the effectiveness and efficiency of the Dutch corporate insolvency law. I have studied the effectiveness of the current Dutch insolvency law and of European Directive 2001/23/EC which is incorporated in this law, on the basis of theoretical and large‐scale empirical research. The study concerned all 4167 of the corporate insolvencies that ended in 2004. In the first part of this Article (International Insolvency Review, Volume 17, 3, Winter 2008, pp. 189–209), the research results showed that the Dutch Bankruptcy Act achieved the goals set on it only to a limited degree and that the informal restructuring procedure is of great social importance. In this second part, I concentrate on the conditions imposed by European Directive 2001/23/EC on the European national legislatures to protect employees' rights: automatic transfer of employment contracts in the event of transfers as part of insolvency proceedings, together with measures to prevent misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this European Directive. The study shows that, in the Netherlands, not applying automatic transfer of employment contracts when an undertaking or business is transferred as part of an insolvency proceeding does not result in large‐scale misuse of insolvency law. It appears that automatic transfer of employment contracts outside insolvency proceedings can actually impede the informal restructuring of financially unsound companies. These surprising results are interesting for corporate insolvency proceedings worldwide. Copyright © 2009 John Wiley & Sons, Ltd.

Towards a Virtual General Meeting: ‘I accept’ or ‘I decline’?

The General Meeting plays an essential role in the functioning of the Dutch corporate governance system which is based on self-regulation. It is therefore of importance that shareholders turn up during the Annual General Meeting (AGM). However, studies conducted in 2007 showed that on average only 45% of shareholders cast their vote during the AGM. Several academic writers have proposed a Virtual General Meeting (VGM) as a solution to the low attendance of shareholders. This article is meant to produce some ideas on how the VGM could contribute to corporate governance, the position of the shareholder and to provide some means to measure these contributions. It is argued that in order to measure whether the introduction of the VGM in Dutch business law would be feasible and desirable one needs more than comparative law alone to examine the functionality of a VGM in relation to corporate governance. The Dutch legislature probably cannot escape the fact that it should allow more virtuality into the AGMs in the near future. However, the possible positive and negative effects of the VGM have not yet been proven convincingly. To serve the continuing discussion on a VGM, suggestions are made for two models for the VGM that represent two ends of a spectrum of virtuality and law.

The effectiveness and efficiency of corporate insolvency law-part 1

“Is inefficient justice unjust?”

Directors’ and Shareholders’ Liability as a Means of Protecting Creditors of the BV

This article discusses the proposed changes to the capital maintenance regime applicable to the Dutch BV. The draft legislation introduces a liability of directors for unlawful distributions and an obligation for shareholders to repay distributions made to them in the suspect period of one year prior to the opening of bankruptcy proceedings. The current enhanced balance sheet test is replaced with a simple balance sheet test and a liquidity test. With the proposed new rules on creditor protection, the Dutch legislature aims to balance welfare and fairness: the law should not place unnecessary restrictions on company’s financing decisions, but at the same time it should offer effective protection to creditors. The draft legislation has been subjected to a consultation process. The reactions to the consultation document show that it is not easy to strike the right balance between the interests of the three parties involved: the shareholders, the directors and the creditors.

The status of genetic material and genetic information in The Netherlands

The moral status of genetic material and information, and the ethics of controlling and manipulating them, is a topic of hot debate in many European countries, including The Netherlands. That heat is due partly to the complexity of the topic, and partly to researchers' fear that their investigations will be hampered by restrictions on the use of personal data or body material. But there is little doubt that manifold diverging interpretations about the status of the human body, body materials, and personal information in Dutch law, written and unwritten, contribute to the intensity of the debates. This article intends to structure the debate by creating more clarity at the conceptual level. By carefully examining relevant articles of the Constitution and Civil Codes, as well as policy documents and authoritative publications, notably in reference to prominent legal concepts such as property, ownership and privacy, an answer should be provided to the following crucial question: is the status of genetic material and information in any sense special in comparison with other body parts and other kinds of information about a person? This paper first discusses the status of human body materials and personal information in general, and then continues with a more specific discussion about the status of genetic material and information. It concludes that the Dutch legislature had carefully avoided (or not felt the need to employ) the concept of ownership in regulating biomedical research; rather, privacy is found to be the prime regulatory concept.

Judicial enforcement of Article 26 of the international covenant on civil and political rights in the Netherlands

In December 1978 the Dutch Government ratified the International Covenant on Civil and Political Rights (ICCPR) as well as its Optional Protocol, which contains the possibility for individuals to submit complaints to the Human Rights Committee. According to Article 49 ICCPR and Article 9 Optional Protocol both documents entered into force in the Netherlands three months later, on 11 March 1979. The ratification process of the ICCPR had taken so long (the ICCPR was adopted by the UN General Assembly in 1966) because of the Dutch practice of eliminating, before the ratification of a treaty, any (possible) conflicts between national legislation and the treaty in question. This can be achieved, as has indeed been done, either by making the necessary and appropriate reservations, or by changing national law accordingly. It has always been the intention of the Dutch legislature that all foreseeable conflicts would have been eliminated by the time a treaty enters into force.

The New Dutch and German Drug Laws: Social and Political Conditions for Criminalization and Decriminalization

The “drug wave” of the late 1960s was widely perceived as a threat to the legitimacy of normative expectations in Dutch and German society. Although the overwhelming reaction of public opinion to drug users in both countries was hostile and punitive, the German legislature passed even more repressive laws whereas the Dutch legislature adapted the normative system to the use of both “soft” and “hard” drugs. Although in each instance the initiative for legal change came from the political and moral “progressives,” the conservative “moral center” retained a veto power. Why it used this veto power in Germany but actively supported the reform bill in Holland is explained in terms of the macrostructure of each society.