Brief review of 2019

The first month of 2019 involved a celebration: the 100th anniversary of the Supreme Court’s landmark Lindenbaum-Cohen judgment. The day itself was marked with a joint symposium organised by Leiden University, the University of Amsterdam and the Supreme Court. The symposium concluded at the Supreme Court. In honour of the anniversary, the employees of the Supreme Court performed an operetta entitled ‘NJ 1919, p. 161’, which was composed especially for the occasion. The celebration garnered extensive news coverage. The Dutch daily newspaper De Volkskrant attended a rehearsal by the chorus and published an article about it, and the television programme Buitenhof interviewed President Maarten Feteris, who composed the operetta.

The Lindenbaum-Cohen judgment dealt with the concept of unlawful act. It was in that judgment that the Supreme Court ruled that it was not only acts which violated statutory law that could be considered unlawful, but also those acts which contravened the societal norm of proper social conduct. This ruling imbued unwritten law with great significance. In particular in the run-up to the ruling, heated discussions took place about this (see among others A.P.Th. Eyssell, ‘Het wetsvoorstel omtrent de onregtmatige daad en de regtszekerheid’, in Rechtsgeleerd magazijn Themis, nr. 72, 1911, pag. 568-617 en de NJ Vooraf of advocate-general Ton Hartlief January, 7, 2020). Some feared that classifying a failure to meet the societal norm of due care as an unlawful act could result in a civil-law catastrophe and have unacceptable consequences for the economy. Did this not confer an excessive amount of discretion upon the courts? The ruling was in any case a seminal one in the development of the law in our country. Now, the definition of ‘unlawful act’ formulated by the Supreme Court is part of statutory law. To this day, it continues to play a crucial role in our society, and our legal system.

The year 2019 drew to a close with the Supreme Court’s judgment in Urgenda, a climate change-related case which, like the Lindenbaum-Cohen judgment a century before, sparked intense debates, including about the role played by our courts, particularly as that role relates to the role of the legislature in a democracy under the rule of law. In the Urgenda case, the Supreme Court was asked for rulings on issues of law and matters of principle that would have a major impact on society, issues entailing deadlocks that had to be resolved. Courts cannot avoid such issues, as they cannot simply refuse to issue rulings; that was the way it was when the Lindenbaum-Cohen judgment was handed down, and that is the way it still is in 2019. A century of developing the law shows that the highest court has always had to deal with matters of principle that skirt the boundary between judicial and legislative powers. Cases in which courts have sometimes rendered law-making decisions that have had a major impact on society.

The role courts play in society and their position within the trias politica, however, have developed over the last century. This development was prompted by a variety of national and international developments. The volume of international law that supersedes national law has increased. This means that more and more often, courts must review the application of national statutory requirements in light of international treaties. For example, various human rights treaties have been ratified that have a direct effect on national law; the best known of these is the European Convention on Human Rights (ECHR). EU law also has a significant effect on the work done by courts. At the same time, the volume of national statutory and regulatory law has increased significantly in recent years. More and more often, these statutes and regulations deliberately include open standards which are left to the courts to interpret or which require an administrative interpretation which, in turn, the court can then review to determine its lawfulness. There are various other examples of situations in which the legislature has opted to wait and see how the courts develop the law before enacting new statutes. One example of this type of situation was the determination of the scope of legal euthanasia. In additions, citizens are voicing their opinions louder than ever before, sometimes as a collective, and the possibilities for protecting individual rights have expanded. As a result, appeals are being lodged more frequently. These are developments that have influenced, and will continue to influence, the further development of the position and duties of the courts.

In 2019, in addition to rendering its judgment in Urgenda, the Civil Division of the Supreme Court also ruled on other matters of principle as well as controversial cases, including those involving the Mothers of Srebrenica, gas extraction in the province of Groningen, designated smoking areas in hotels and restaurants, and the liability of the police relating to the shooting at the ‘de Ridderhof’ shopping centre in Alphen aan de Rijn. The Criminal Division issued a judgment in the Passage liquidation trial, which centred on the crown witness scheme, and two cases in which the police conducted covert investigations using the so-called Mr Big method. The Tax Division issued a judgment in the ‘Box 3’ cases. All these cases are discussed in more detail under the relevant headings of this annual report. These are just a few prominent cases out of the many judgments the Supreme Court issued in 2019 which can be reviewed at www.rechtspraak.nl.

The fact that court decisions, and in particular the decisions rendered by the Supreme Court as the court of last resort, result in questions, debates, and criticism is, in itself, a positive thing. It is also unsurprising because in such cases, which develop the law, there are always arguments for and against the decision that is ultimately rendered. There is good reason why the most controversial cases often end up before the Supreme Court. The fact that such cases give rise to debate is also a positive sign because it shows that the law is a living thing, that it is a fundamental part of our society and of our democracy under the rule of law, and because such debate can contribute to its further development.

In the course of this debate, it is important to keep the fragile balance within our democracy under the rule of law in mind. We need not look very far beyond our borders to realise how important it is for us to handle that democracy, which we have worked so hard to achieve, with care. Striking a balance between the separate powers of state is crucial to the functioning of society, the recognition of everyone’s responsibilities, and in particular for each citizen’s faith in that democracy. Over the course of time and subjected to the influences of politics, society and developments in the law, the checks and balances between those powers may appear dynamic, but each of the three powers must, of course, always respect the responsibilities of the other two. Should one of those powers gain the upper hand and undermine one or both of the others, the aforementioned balance will evaporate, resulting in the threat of an uncontrolled concentration of power. In such a situation, our status as a country under the rule of law would be put in jeopardy.

In the context of the separation of powers, such respect is expressed in their interactions with one another. Fortunately, these interactions are effective and constructive, and a situation of mutual trust exists between them. For example, the Supreme Court attaches great value to the annual consultations with the Standing Committees on Justice and Security of the Dutch Senate and House of Representatives, effective contact with the administration, and dozens of formal and informal contacts with other institutions in our society.

We cannot neglect to mention in this ‘Brief Review of 2019’ that 2019 was the year in which the current President announced that he would be stepping down on 1 November 2020, the date on which his six-year term, the maximum term of office for the President of the Supreme Court, expires. The Supreme Court has a Protocol for the procedure for arriving at a recommendation for the nomination and appointment of the new President of the Supreme Court of the Netherlands. This protocol requires the sitting President to notify the members of the Supreme Court of his intended resignation date at least one year in advance. The President complied with this requirement in 2019, enabling the process of finding a successor to be started in good time.