CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS Martijn van Empel and Marianne de Jong IVA2 Although the title of this paper may seem extremely broad, a very particular topic is addressed in this paper. It focuses on the extent to which the Dutch legal order recognises noms of constitutional and intemational bw as bind ing not only on the legislative and regulatory authorities, but also on priva te parties when acting either r hasbeen impose lim its on party autonomy under Dutch la w. t ional and contractually or unilaterally. In other words, it examines whether const material constitutional and international noms lim iting party autonomy which have been applied in cases before Dutch courts conceming contracts and torts In Section 2 we will ela borate on the manner in which these noms are being enforced before Dutch courts. The method of these noms producing effect as well as the circumstances of enforcement will be discussed. Subsequently, the non-judicial enforcement mechanisms ensuring respect for the constitutional and intemational limitations will be discussed in Section 3. In Section 4 fina lly the theoretical underpinnings for the enforcement of the constitutional and intemational limitatio are addressed Constitutional and international limitations on party autonomy 1. Constitutional norms In this paragraph we will describe whether under Netherands law and if so, to what extent constitutional norms limit the freedom of a person (a) to enter into contracts with other private parties and(b)to take unilaterallegalacts 1. 1. 1 Public authority actingas"private party Whilst this paper focuses on" priva te parties", it should be noted that under Netherlands aw it is accepted that the State and other public entit ies are also, subject to certa in conditions, subject to the law of contracts and the law of torts, asapplicable to private parties in accordance with the Civil Code In this regard attention should be drawn to Article 3: 14 Civil Code, according to which violationof the written or umwrittenrules ofpublic lanp",not b A right which a person has by virtue of the civil law, may It would appear that it is the prevailing opinion that this provision is addressed not to any"person"generally, both public and private, but rather specif ically to public Martin van Empel i a Frofessor at LUISS Guido Cari Uniersity, Rome and attomey, partner at Stibbe Amsterdam Marianne de jong ll. M. m.A, i a research fellow at the university of Amsterdam Department ofIntemational law, Secton European Integration
CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS Martijn van Empel* and Marianne de Jong** IV A 2 Although the title of this paper may seem extremely broad, a very particular topic is addressed in this paper. It focuses on the extent to which the Dutch legal order recognises norms of constitutional and international law as binding not only on the legislative and regulatory authorities, but also on private parties when acting either contractually or unilaterally. In other words, it examines whether constitutional and international law can impose limits on party autonomy under Dutch law. The paper has been divided into four sections. In the first section we will identify the material constitutional and international norms limiting party autonomy which have been applied in cases before Dutch courts concerning contracts and torts. In Section 2 we will elaborate on the manner in which these norms are being enforced before Dutch courts. The method of these norms producing effect as well as the circumstances of enforcement will be discussed. Subsequently, the non-judicial enforcement mechanisms ensuring respect for the constitutional and international limitations will be discussed in Section 3. In Section 4 finally the theoretical underpinnings for the enforcement of the constitutional and international limitations are addressed. 1 Constitutional and international limitations on party autonomy 1.1 Constitutional Norms In this paragraph we will describe whether under Netherlands law and if so, to what extent constitutional norms limit the freedom of a person (a) to enter into contracts with other private parties and (b) to take unilateral legal acts. 1.1.1 Public authority acting as a “private party” Whilst this paper focuses on “priva te parties”, it should be noted that under Netherlands law it is accepted that the State and other public entities are also, subject to certain conditions, subject to the law of contracts and the law of torts, as applicable to private parties in accordance with the Civil Code. In this regard attention should be drawn to Article 3: 14 Civil Code, according to which: “A right which a person has by virtue of the civil law, may not be exercised in violation of the written or unwrittten rules of public law”. It would appear that it is the prevailing opinion that this provision is addressed not to any “person” generally, both public and private, but rather specifically to public * Martijn van Empel is a Professor at LUISS Guido Carli University, Rome and attorney, partner at Stibbe Amsterdam ** Marianne de Jong L.L.M. M.A., is a Research Fellow at the University of Amsterdam, Department of International Law, Section European Integration
VAN EMPEL/DE JONG authorities. Consequently, it may be subm itted that in effect, this provision is onstructed as ensuring that public authorities, also when they act under the guise of private party capacity, should fully comply with their public law duties and respect the specific public law constraints imposed upon them. I An illustrative case in this regard relates to the refusal by a municipality, acting in its capacity as the owner of a theatre, to conclude a contract for a public "hypnosis-show"in that theatre. As it was established that the refusal was based on the finding by the municipality that hypnosis as a public show would not be in accordance with the Christan fath va lues which in that municipa lity were generally shared by the popultion, the Hoge Raad(Netherlands Supreme Court)ruled that this amounted to a ban on the basis of the content of the show and that it was therefore contrary to the fundamental right to the free expression of opinion, as guaranteed in Article 7 of the Constitution (HR 26 April 1996, AB 1996, no 372, m.o. G D. Rasti rastelli") Again, a case where a Congresshall refused to let a room to an association which was deemed to sympathise with South African"Apartheid "gave rise to the issue as to a ossible infringement of the freedom of assembly, as guaranteed under Article 9 of the Constitution. The Court found that it was relevant to the case that 30% of the share capital of the Congresshall was owned by the Municipality of The Hague, lich appointed 50% of the members of the Supervisory Board. In that light the Court expressed doubts as to whether the legal relationship between the Congresshall and the assocation concerned could be qualified as "horizontal. It went on to say If one wishes to confirm this, then one has to admit in any case a horizontal effect of the constitutional fundamental right".On that basis an injunction was issued to waive the tortuous refusal President Rechtbank(District Court) The hague, 9 June 1987,AB1987,580) Another noteworthy judgment in this regard is that of the Court of Appeals Leeuwarden of 1983, in which the latter found that public authority may make use of private law(contractual)means beyond what would be allowed under its public law powers, provided it would not, had it acted on a public law basis, have acted in olation of a provision of a higher rank, such as in casu Article 10, par 2, of the uropean Convention of Human Rights(ECHR)(Court of Appeals Leeuwarden, 23 March1983,AB1983,336) 1. 1. 2 Private parties as such As mentioned above it is generally understood that Article 3: 14 Civil Code is not addressed to private parties as such. As far as the latter are concerned, the issue has to be addressed on a different basis. therefore The issue as to what is the proper legal basis for the effects of constitutional and international noms, more particular fundamental human rights, on relations between private parties will be addressed in Section IV below. At this stage it seems adequate for the purpose of relating the state of affa irs in practice, to refer to this as the issue of horizontal effects offundamental human rights See JC.E. Ackermans-Wijn, 'Art. 3: 14 NBW en de overheid, in: WCL van der Grinten (red )Ondernemingen nieuw burgerlijk recht, Zwolle 1991, p. 57
VAN EMPEL/DE JONG 2 authorities. Consequently, it may be submitted that in effect, this provision is constructed as ensuring that public authorities, also when they act under the guise of private party capacity, should fully comply with their public law duties and respect the specific public law constraints imposed upon them.1 An illustrative case in this regard relates to the refusal by a municipality, acting in its capacity as the owner of a theatre, to conclude a contract for a public “hypnosis-show” in that theatre. As it was established that the refusal was based on the finding by the municipality that “hypnosis as a public show would not be in accordance with the Christian faith values which in that municipality were generally shared by the population”, the Hoge Raad (Netherlands Supreme Court) ruled that this amounted to a ban on the basis of the content of the show and that it was therefore contrary to the fundamental right to the free expression of opinion, as guaranteed in Article 7 of the Constitution. (HR 26 April 1996, AB 1996, no. 372, m.o.v. Th.G.D. Rasti Rostelli”) Again, a case where a Congresshall refused to let a room to an association which was deemed to sympathise with South African “Apartheid” gave rise to the issue as to a possible infringement of the freedom of assembly, as guaranteed under Article 9 of the Constitution. The Court found that it was relevant to the case that 30% of the share capital of the Congresshall was owned by the Municipality of The Hague, which appointed 50% of the members of the Supervisory Board. In that light the Court expressed doubts as to whether the legal relationship between the Congresshall and the association concerned could be qualified as “horizontal”. It went on to say: “If one wishes to confirm this, then one has to admit in any case a horizontal effect of the constitutional fundamental right”. On that basis an injunction was issued to waive the tortuous refusal (President Rechtbank (District Court) The Hague, 9 June 1987, AB 1987, 580). Another noteworthy judgment in this regard is that of the Court of Appeals Leeuwarden of 1983, in which the latter found that public authority may make use of private law (contractual) means beyond what would be allowed under its public law powers, provided it would not, had it acted on a public law basis, have acted in violation of a provision of a higher rank, such as in casu Article 10, para 2, of the European Convention of Human Rights (ECHR) (Court of Appeals Leeuwarden, 23 March 1983, AB 1983, 336). 1.1.2 Private parties as such As mentioned above it is generally understood that Article 3: 14 Civil Code is not addressed to private parties as such. As far as the latter are concerned, the issue has to be addressed on a different basis, therefore. The issue as to what is the proper legal basis for the effects of constitutional and international norms, more particula r fundamental human rights, on relations between private parties will be addressed in Section IV below. At this stage it seems adequate for the purpose of relating the state of affairs in practice, to refer to this as the issue of horizontal effects of fundamental human rights. 1. See J.C.E. Ackermans-Wijn, ‘Art. 3: 14 NBW en de overheid’, in: W.C.L. van der Grinten (red.) Onderneming en nieuw burgerlijk recht, Zwolle 1991, p. 57
CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS It would appear fair to say, that the courts in The Netherlands tended, through the years, to be rather reticent in their recognition of"horizontal effect". It should be stressed, however, that this did not leave necessarily the sub stance of fundamental rights unprotected at ahorizontal"level. Rather, reference was made, in some instances, to general principles and an equitable balancing of interests. Examples of such approach may be found in the following cases It has been established that a religious congregation acting as landlord cannot refuse to renew a lease contract with a tenant on the ground that the latter has ceased being a member of that congregation. Rather than a direct reference to the freedom of religion(Article 6, Constitution)this judgment was based on an equitable balancing of interests of both sides. In this regard it should be noted that the court distinguished between a situation where a lease contract would be concluded for the first time and that of a renewal of such contract. the interest of the lessee clearly being of more relevance in the katter case as opposed to the fomer.(Hof(Court of Appeal) Arnhem 15-11-1958, NJ 1959, 472, Hof Arnhem 24 June 1958, NJ 1959, 473) The freedom of education(Article 23(2), Constitution)was at issue in a case where it had been stipulated in a contract that under certain specif circumstances one party to the contract would be barred from certa in teaching activities("Mensendieck ) Again, the case was adjudged in terms of"public order and faimess"("openbare orde en goede zeden), rather than those of a direct applicability of the fundamental right to education as enshrined in the Constitution(HR 31 October 1969, NJ 1970, 57, m o.v. GJS)(a second dgment by the Hoge Raad in the same litigation rehted to the First Protocol of the ECHr, see p 7) On the other hand, in that same period an instance of an explicit reference to a fundamental right is to be found in a judgment of the Court of Appeals in Amsterdam of 30 October 1980(NJ 1981, 422). In that case the court held that was an infringement of the freedom of expression although this refusal was based on reasons related to the form, rather than to the content( "Outspan") In some other cases, the courts appeared prepared to hear argument based on fundamental rights but d ism issed the claims on the facts Aga inst that background it is interesting to note that at the occasion of the revision of the Constitution which entered into force in 198, not only was a catalogue of fundamental rights" put into prominence at the beginning of the text of the Constitution. but also the issue of "horizontal effect was addressed in the parliamentary discussions as a specific issue. Whilst it would seem that there was consensus as to a more flexible approach to the issue of horizontal effect", no clear guidelines could be distilled from the debates and the issue was in effect left to be dealt with by the courts on a case-by-case basis As it is, as from 1984, whilst the courts may have been more inclined to act upon a horizontal effect of fundamental rights, this by no means meant that this was now
CONSTITUTION,INTERNATIONAL TREATIES,CONTRACTS AND TORTS 3 It would appear fair to say, that the courts in The Netherlands tended, through the years, to be rather reticent in their recognition of “horizontal effect”. It should be stressed, however, that this did not leave necessarily the substance of fundamental rights unprotected at a “horizontal” level. Rather, reference was made, in some instances, to general principles and an equitable balancing of interests. Examples of such approach may be found in the following cases: - It has been established that a religious congregation acting as landlord cannot refuse to renew a lease contract with a tenant on the ground that the latter has ceased being a member of that congregation. Rather than a direct reference to the freedom of religion (Article 6, Constitution) this judgment was based on an equitable balancing of interests of both sides. In this regard it should be noted that the court distinguished between a situation where a lease contract would be concluded for the first time and that of a renewal of such contract, the interest of the lessee clearly being of more relevance in the latter case as opposed to the former. (Hof (Court of Appeal) Arnhem 15-11-1958, NJ 1959, 472; Hof Arnhem 24 June 1958, NJ 1959, 473). - The freedom of education (Article 23(2), Constitution) was at issue in a case where it had been stipulated in a contract that under certain specific circumstances one party to the contract would be barred from certain teaching activities (“Mensendieck”). Again, the case was adjudged in terms of “public order and fairness” (“openbare orde en goede zeden”), rather than those of a direct applicability of the fundamental right to education as enshrined in the Constitution. (HR 31 October 1969, NJ 1970, 57, m.o.v. G.J.S.) (a second judgment by the Hoge Raad in the same litigation related to the First Protocol of the ECHR, see p.7). - On the other hand, in that same period an instance of an explicit reference to a fundamental right is to be found in a judgment of the Court of Appeals in Amsterdam of 30 October 1980 (NJ 1981, 422). In that case the court held that under the circumstances a refusal to accept an anti-Apartheid advertisement, was an infringement of the freedom of expression although this refusal was based on reasons related to the form, rather than to the content (“Outspan”). In some other cases, the courts appeared prepared to hear argument based on fundamental rights but dismissed the claims on the facts. Against that background it is interesting to note that at the occasion of the revision of the Constitution which entered into force in 1983, not only was a catalogue of “fundamental rights“ put into prominence at the beginning of the text of the Constitution, but also the issue of “horizontal effect” was addressed in the parliamentary discussions as a specific issue. Whilst it would seem that there was consensus as to a more flexible approach to the issue of “horizontal effect”, no clear guidelines could be distilled from the debates and the issue was in effect left to be dealt with by the courts on a case-by-case basis. As it is, as from 1984, whilst the courts may have been more inclined to act upon a “horizontal effect” of fundamental rights, this by no means meant that this was now
VAN EMPEL/DE JONG the dominant line. Accordingly, there is a mixed harvest of cases, some making specific reference to one fundamental right or another, others rely ing on the more classic"balancing of interests within the canons of interpretation. An instance of the fomer is the judgment of the Court of Appeal, Amsterdam of 17 February 1984(NJ 1985, 96). It was alleged that the defendant Electricity company acted in tort in that it discrim inated aga inst certa n migrant persons living in campers by requiring certa in additional contractual guarantees as a condition for the supply of electricity to those persons On the facts it was established by the court that there was no instance here of treating cases differently, as would have been prohibited by virtue of Article 1. Const tution On the other hand, in its judgment of 30 March 1984 (Inan v De venhorst, AB 1984 366)the Hoge Raad tested a claim for unfair dism issa because of absence from work forreligious reasons, not directly against the fundamental right to freedom of religion, but rather assessed whether this absence could be deemed a"pressing reason for dismissal under labour law provisions of the Civil Code A typical instance of judicial discretion in this regard is to be found in the Hoge Raad's judgment on a plea to the effect that the fundamental right to a free choice of work implied that an explicit written stipulation in the labour contract would be required under the circumstances of the case. The Court held that this view would grant to this fundamental right a wider horizontal effect than would be warranted (HR I July 1997, NJ 1997, 695, Kolkman) To wind up on this section, attention should be drawn to the sequence of judgments in what is referred to as the"aids -test case". This related to a case of rape where the victim fearing that she might have been infected with Hiv first had herself tested with negative outcome), but was then informed that for a conclusive result she would have to be tested a second time Not beingable to face the psychological stress of a second test she then sued for the perpetrator of the rape to have himself tested, on his part, which the latter refused to do. As it is, each side in the ensuing legal battle relied for its part on the same fundamental human right enshrined in the Constitution, in respectively Article 10(respect for private life)and Article 1 1(inviolability of the human body) In the first instance the court recognised that each side indeed could rely on those fundamental rights and that accordingly the respective interests of each side had to be weighted a ga inst each other. On that basis it found for the plaintiff (the victim of the rape).(Pres. District Court Amsterdam, 1l July 1991, KG 1991, 242: NJCM Bulletin 16.6(1991), p 560ev, m.n. A Sas) On appeal the Court of Appeals in Amsterdam appears to deny that in the issue of obta ining conclusive ev idence on the ads-risk as a consequence of the rape the fundamental human rights of the victim of the rape areat stake, which leaves only the defendant in a position to rely on his fundamental rights not to be subjected to a HIV-test against his will. Accordingly, the action by the victim of the rape was dismissed. Court of Appeals Amsterdam, 5 March 1992, RN 1992, 296) On further appeal(cassation)the Hoge Raad, however, in its turn found for the
VAN EMPEL/DE JONG 4 the dominant line. Accordingly, there is a mixed harvest of cases, some making specific reference to one fundamental right or another, others relying on the more “classic” balancing of interests within the canons of interpretation. An instance of the former is the judgment of the Court of Appeal, Amsterdam of 17 February 1984 (NJ 1985, 96). It was alleged that the defendant Electricity company acted in tort in that it discriminated against certain migrant persons living in campers by requiring certain additional contractual guarantees as a condition for the supply of electricity to those persons. On the facts it was established by the court that there was no instance here of treating cases differently, “as would have been prohibited by virtue of Article 1, Constitution” On the other hand, in its judgment of 30 March 1984 (Inan v De Venhorst, AB 1984, 366) the Hoge Raad tested a claim for unfair dismissal because of absence from work for religious reasons, not directly against the fundamental right to freedom of religion, but rather assessed whether this absence could be deemed a “pressing reason for dismissal” under labour law provisions of the Civil Code. A typical instance of judicial discretion in this regard is to be found in the Hoge Raad’s judgment on a plea to the effect that the fundamental right to a free choice of work implied that an explicit written stipulation in the labour contract would be required under the circumstances of the case. The Court held that “this view would grant to this fundamental right a wider horizontal effect than would be warranted” (HR 1 July 1997, NJ 1997, 695, Kolkman). To wind up on this section, attention should be drawn to the sequence of judgments in what is referred to as the “aids-test case”. This related to a case of rape where the victim fearing that she might have been infected with HIV first had herself tested (with negative outcome), but was then informed that for a conclusive result she would have to be tested a second time. Not being able to face the psychological stress of a second test she then sued for the perpetrator of the rape to have himself tested, on his part, which the latter refused to do. As it is, each side in the ensuing legal battle relied for its part on the same fundamental human right enshrined in the Constitution, in respectively Article 10 (respect for private life) and Article 11 (inviolability of the human body). - In the first instance the court recognised that each side indeed could rely on those fundamental rights and that accordingly the respective interests of each side had to be weighted against each other. On that basis it found for the plaintiff (the victim of the rape). (Pres. District Court Amsterdam, 11 July 1991, KG 1991, 242; NJCM Bulletin 16.6 (1991), p. 560 e.v., m.n. A. Sas). - On appeal the Court of Appeals in Amsterdam appears to deny that in the issue of obtaining conclusive evidence on the aids-risk as a consequence of the rape the fundamental human rights of the victim of the rape are at stake, which leaves only the defendant in a position to rely on his fundamental rights not to be subjected to a HIV-test against his will. Accordingly, the action by the victim of the rape was dismissed. (Court of Appeals Amsterdam, 5 March 1992, RN 1992, 296). - On further appeal (cassation) the Hoge Raad, however, in its turn found for the
CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS plaintiff. The supreme court based itself on the finding that both sides could indeed each rely on the fundamental human rights referred to and accordingly, in order to come to a solution of the conflict, a concession on the right of one of the opposing parties had to be accepted Whereas the Court of First Instance had not further explicited the basis for its weighting of the interests at stake, the Hoge Raad for its part held that the concession to be relating to tort law under the Civil Code. More particularly, the cout relie es required from one of the opposing parties had to be based on the principles the principle that the perpetrator a tort -action is bound in law to lim it as much he can the damaging consequences of his action. On that basis, derived from civil law, the fundamental human right of the defendant, enshrined in the Constitution had to suffer an exception in the case at hand(Hoge Raad, 18 June 1993, RvdW 1993, 136: NJ NJCM Bulletin 18-7-(1993)p. 786 m.n. L.F.M 1.2 International norms In this paragraph we will address the question whether under Netherlands law and if so, to what extent international norms lim it the freedom of a person(a)to enter into contracts with other private parties and (b)to take unilateral legalacts With regard to this question it should be stressed in the first place that th Netherlands Constitution expressis verbis provides for the precedence of directly effective binding provisions of international treaties and of decisions of public international law organisations(Articles 93 and 94). Accordingly the Dutch courts are bound to assess the possible conflict between self executing provisions of those international law instruments and provisions of Netherands national law. On the er hand, non-written public intermational law and non-self executing provisions of written public international law instruments will not be taken into account on the ame basis(hr 6 March 1959, NJ 1962, no. 2).2 impact which the law of the European Union, more particularly the lw of the uropean Community(fomerly the European Econom ic Community has had on the legal relations between private parties in the Netherlands. Indeed, that body of law permeated the Dutch legal system in such detail and in such scope that any meaningful discussion would require a separate report in its own right. Just to mention two instances, both with regard to competition awas well as the labour w regime as to the equal treatment of men and women the position of private parties has been fundamentally affected by EC law as it has developed over the years. Perhaps more mportant in this regard is the consideration that the body of ec law does not for its effect in Dutch aw, depend on the provisions of the Dutch Constitution(see Court of Justice, 5 February 1963, Case 26/62, (1993)ECR 1, (Van Gend loos) and 15 July 1964, Case 6/64, (1964)ECR 585 (Costa/ENEL ) For that matter, the Dutch courts have generally accepted the doctrines of autonomy and supremacy of EC Law as well as the enforcement mechanisms of direct effect. conform More on the technique of enforcing intemational norms in the Dutch context p 1 1-16
CONSTITUTION,INTERNATIONAL TREATIES,CONTRACTS AND TORTS 5 plaintiff. The supreme court based itself on the finding that both sides could indeed each rely on the fundamental human rights referred to and that accordingly, in order to come to a solution of the conflict, a concession on the right of one of the opposing parties had to be accepted. Whereas the Court of First Instance had not further explicited the basis for its weighting of the interests at stake, the Hoge Raad for its part held that the concession to be required from one of the opposing parties had to be based on the principles relating to tort law under the Civil Code. More particularly, the court relied on the principle that the perpetrator of a tort-action is bound in law to limit as much he can the damaging consequences of his action. On that basis, derived from civil law, the fundamental human right of the defendant, enshrined in the Constitution had to suffer an exception in the case at hand (Hoge Raad, 18 June 1993, RvdW 1993, 136; NJ NJCM Bulletin 18-7-(1993) p. 786 m.n. L.F.M. Verhey). 1.2 International norms In this paragraph we will address the question whether under Netherlands law and if so, to what extent international norms limit the freedom of a person (a) to enter into contracts with other private parties and (b) to take unilateral legal acts. With regard to this question it should be stressed in the first place that the Netherlands Constitution expressis verbis provides for the precedence of directly effective binding provisions of international treaties and of decisions of public international law organisations (Articles 93 and 94). Accordingly the Dutch courts are bound to assess the possible conflict between self executing provisions of those international law instruments and provisions of Netherlands national law. On the other hand, non-written public international law and non-self executing provisions of written public international law instruments will not be taken into account on the same basis (HR 6 March 1959, NJ 1962, no. 2).2 Within the context of the present paper it has been decided to leave undiscussed the impact which the law of the European Union, more particularly the law of the European Community (formerly the European Economic Community) has had on the legal relations between private parties in the Netherlands. Indeed, that body of law permeated the Dutch legal system in such detail and in such scope that any meaningful discussion would require a separate report in its own right. Just to mention two instances, both with regard to competition law as well as the labour law regime as to the equal treatment of men and women the position of private parties has been fundamentally affected by EC law as it has developed over the years. Perhaps more important in this regard is the consideration that the body of EC law does not for its effect in Dutch law, depend on the provisions of the Dutch Constitution (see Court of Justice, 5 February 1963, Case 26/62, (1993) ECR 1, (“Van Gend & Loos”) and 15 July 1964, Case 6/64, (1964) ECR 585 (“Costa/ENEL”). For that matter, the Dutch courts have generally accepted the doctrines of autonomy and supremacy of EC Law as well as the enforcement mechanisms of direct effect, conform 2. More on the technique of enforcing international norms in the Dutch context p. 11-16
VAN EMPEL/DE JONG interpretation andstate liability 3 On the other hand, attention here will mainly focus on the noms which can be derived fom the European Convention on Human Rights(ECHR). As a matter of fact, it is submitted that this body of aw has by now been recognised as affecting legal positions in the Netherlands on a regular basis. 4 By contrast it has been found that the Intermational Covenant on Civil and Political Rights, with an exception for Article 26, does not pay a meaningful role in current developments in Netherlands case law on"horizontal effect"of fundamental human rights. It has been suggested that this can be explained by the fact that contrary to the EChr there is no international judiciary institution provided for, and that the Dutch courts apparently feel they can achieve accepta ble results a lready on the com bined basis of the ECHR, the Netherlands Constitution and generalprinciples of Dutch civil law. 6 1.2. 1 The European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR) Whilst for obvious rea sons focus here is still most frequently on"vertical"relations between private parties and public authority, also "horizontal"disputes between private parties inter se have come to be increasingly affected by those Convention-norms When considering now how the EChr (including of course the Protocols attached thereto)has come to condition contract aw and tort law between private parties in The Netherlands, it should be noted that we have chosen not to discuss here those provisions of the Convention which relate to family-relations, more particularly Articles 8 and 12. Indeed, whilst these are essentially private party-relations, the issues which arise in that context concem nevertheless involvement of public authorities(here also including the courts) with the public regulation of family relations. This being said the following cases may be mentioned, in a sequence accordingto the relevant ECHR-provisions Article 4: Prohibition of slavery and forced labour In a case brought by a professional football player who found him self hindered in a transfer by the rules of the national Netherlands football lea gue, the Hoge Raad was prepared to hear theargument based on Article 4, but rejected it on the See Netherlands Report for the XIX FIDE-Congress 2000, The Duties of Co-operation of National Authorities and Courts and the Communty Institutions under Article 10 EC, J.w. de Zwaan, The Netherlands(Judiciary and Authorities) and Articl 10 of the E Hels inki 2000,p.227-259 See L FM. Verhey, De horizontale werking van het EVRM, and P F. van der HeijdenG.J Heerma van Vos, Sociaal Recht en 40 par EVRM, both in: A W. Heringa(ed ) 40 iar Europees Verdrmg poor de rechten lan de Mens, Stchting NJOM-Boekerg Leden, 1990, p. 19-39 and p HR 2 February 1982, NJ1982, 424 and475. 6. L.F. M Verhey, ' De horizontale werking van het IVBPR', NCM Bulletin 19-7(1994), p 828-840
VAN EMPEL/DE JONG 6 interpretation and state liability3 . On the other hand, attention here will mainly focus on the norms which can be derived from the European Convention on Human Rights (ECHR). As a matter of fact, it is submitted that this body of law has by now been recognised as affecting legal positions in the Netherlands on a regular basis.4 By contrast it has been found that the International Covenant on Civil and Political Rights, with an exception for Article 26,5 does not play a meaningful role in current developments in Netherlands case law on “horizontal effect” of fundamental human rights. It has been suggested that this can be explained by the fact that contrary to the ECHR there is no international judiciary institution provided for, and that the Dutch courts apparently feel they can achieve acceptable results already on the combined basis of the ECHR, the Netherlands Constitution and general principles of Dutch civil law.6 1.2.1 The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Whilst for obvious reasons focus here is still most frequently on “vertical” relations between private parties and public authority, also “horizontal” disputes between private parties inter se have come to be increasingly affected by those Convention-norms. When considering now how the ECHR (including of course the Protocols attached thereto) has come to condition contract law and tort law between private parties in The Netherlands, it should be noted that we have chosen not to discuss here those provisions of the Convention which relate to family-relations, more particularly Articles 8 and 12. Indeed, whilst these are essentially private party-relations, the issues which arise in that context concern nevertheless involvement of public authorities (here also including the courts) with the public regulation of family relations. This being said the following cases may be mentioned, in a sequence according to the relevant ECHR-provisions. Article 4: Prohibition of slavery and forced labour - In a case brought by a professional football player who found himself hindered in a transfer by the rules of the national Netherlands football league, the Hoge Raad was prepared to hear the argument based on Article 4, but rejected it on the 3. See Netherlands Report for the XIX FIDE-Congress 2000, The Duties of Co-operation of National Authorities and Courts and the Community Institutions under Article 10 EC, J.W. de Zwaan, ‘The Netherlands (Judiciary and Authorities) and Article 10 of the EC Treaty’, Helsinki 2000, p. 227-259. 4. See L.F.M. Verhey, ‘De horizontale werking van het EVRM’, and P.F. van der Heijden/G.J.J. Heerma van Vos, ‘Sociaal Recht en 40 jaar EVRM’, both in: A.W. Heringa (ed.), 40 jaar Europees Verdrag voor de Rechten van de Mens, Stichting NJCM-Boekerij Leiden, 1990, p. 19-39 and p. 209-223. 5. HR 2 February 1982, NJ 1982, 424 and 475. 6. L.F.M. Verhey, ‘De horizontale werking van het IVBPR’, NJCM Bulletin 19-7 (1994), p. 828-840
CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS facts(HR 17 October 1980, NJ 1981, 141) Article 5: Right to liberty and security It was found that within the framework of insolvency proceedings the courts, when deciding on the possible detention of the insolvent party, should weigh the interests served by the detention against the right to liberty of the person concerned(hr 2 Decem ber 1983, NJ 1984, 306) Article 6: Right to a fair trial Whilst insolvency proceedings are also covered by Article 6, the principle of a public hearing should, in principle, suffer an exception in the interest of the debtor whose insolvency is sought to be declared, unless one of the parties to the proceedings requests a public hearing and no valid grounds are advanced against such request(HR 20 May 1988, NJ1989, 676) Article 8: Right to respect for private and family life It was found that the refusal by a private school to continue adm ission of certa in pupils who refused to attend religious instruction which was a regular item of the curriculum did not amount to non-respect for private and fam ily life within the sense of Article &(HR9 April 1976, NJ 1976, 409) Within the framework of insolvency proceedings certain inroads upon the respect for private life may be justified in the light of the protection of the interests of the creditors(HR 21 February 1984, NJ 1984, no 63, p. 394) Tortuous liability was found by the Hoge Raad in a case where a private indiv idual had passed on certan damaging information on his neighbour to a public authority which thereupon stopped the payment of certan allowances to the latter. Indeed the defendant was found to have infringed the right to respect for privacy and family life and to have therefore acted in tort(hr 9 January 987,NJ1987,928) If it is esta blished that the publication of a picture infringes upon the respect due to private life, this infringement then represents a"reasonable interest"within the sense of Article 21 Auteurswet( Copyright Act)on which a ban on publications can be based (Hr 1 July 1988, NJ 1988, 1000) The Court of Appeals,'s Hertogenbosch, was confronted with a dispute overa request for access to infomation about the identity of the parents of the applicant which information was in the hands of a social medical institution which had, at the time, assisted the presumed mother, since deceased. The Court found that it had to ba ance three categories of legitimate interest against each the interest of the applicant to know the identity of her parents(protected under article 8 ECHR) the public interest to protect the confidentiality of infomation received in confidence by institutions such as the defendant from their patients the interest of persons in a position such as the presumed mother to see her private and family life protected, aga in protected under Article 8 ECHR
CONSTITUTION,INTERNATIONAL TREATIES,CONTRACTS AND TORTS 7 facts (HR 17 October 1980, NJ 1981, 141). Article 5: Right to liberty and security - It was found that within the framework of insolvency proceedings the courts, when deciding on the possible detention of the insolvent party, should weigh the interests served by the detention against the right to liberty of the person concerned (HR 2 December 1983, NJ 1984, 306). Article 6: Right to a fair trial - Whilst insolvency proceedings are also covered by Article 6, the principle of a “public hearing” should, in principle, suffer an exception in the interest of the debtor whose insolvency is sought to be declared, unless one of the parties to the proceedings requests a public hearing and no valid grounds are advanced against such request (HR 20 May 1988, NJ 1989, 676). Article 8: Right to respect for private and family life - It was found that the refusal by a private school to continue admission of certain pupils who refused to attend religious instruction which was a regular item of the curriculum did not amount to non-respect for private and family life within the sense of Article 8 (HR 9 April 1976, NJ 1976, 409). - Within the framework of insolvency proceedings certain inroads upon the respect for private life may be justified in the light of the protection of the interests of the creditors (HR 21 February 1984, NJ 1984, no. 63, p. 394). - Tortuous liability was found by the Hoge Raad in a case where a private individual had passed on certain damaging information on his neighbour to a public authority which thereupon stopped the payment of certain allowances to the latter. Indeed the defendant was found to have infringed the right to respect for privacy and family life and to have therefore acted in tort (HR 9 January 1987, NJ 1987, 928). - If it is established that the publication of a picture infringes upon the respect due to private life, this infringement then represents a “reasonable interest” within the sense of Article 21 Auteurswet (Copyright Act) on which a ban on publications can be based (HR 1 July 1988, NJ 1988, 1000). - The Court of Appeals, ‘s Hertogenbosch, was confronted with a dispute over a request for access to information about the identity of the parents of the applicant which information was in the hands of a social medical institution which had, at the time, assisted the presumed mother, since deceased. The Court found that it had to balance three categories of legitimate interest against each other: - the interest of the applicant to know the identity of her parents (protected under Article 8 ECHR); - the public interest to protect the confidentiality of information received in confidence by institutionssuch as the defendant from their patients; - the interest of persons in a position such as the presumed mother to see her private and family life protected, again protected under Article 8 ECHR
VAN EMPEL/DE JONG The Court found that none of the three categories of interest should prevail over the two others in all circumstances. In particular, absolute protection for the right to information about the identity of the parents would have such far-reaching consequences, that such absolute protection could only be based on an explicit statutory provision to that effect(Court of Appeals, 's Hertogen bosch 18 September 1991, NJ1991, 796) Article 9: Freedom of thought, conscience and religion It was found in general terms that on the basis of Article 9, par. 2, it must be concluded that the law of torts can prov ide a legal ground or limitations upon the freedom of thought, conscience and religion(hr 5 June 1987, NJ 1988,702) Article 10: Freedom of expression In a case relating to TV broadcasting of football matches the Hoge Raad found that Article 10 does not impose as such a ban on the refusal of data to the newsgathering media(HR 23 October 1987,NJ 1988, 310) Ina judgment of 1988 the Hoge Raad found that under certa in ci interests protected under Article 8 and Article 10, respectively balanced aga inst each other(HR 4 March 1988, NJ 1989, 361) Article 2. first protocol In 1988, the Hoge Raad was confronted with a dispute conceming the refusal by the Maimonides Lyceum to adm it a boy who was found not to qualify under the rules for admission reserved to Jewish children according to the guidelines of the Halacha As to the mpact of Article 2 First Protocol, ECHR the Hoge Raad found that parents were entitled to respect for their choice of education based on certain principles correspond ing to their religious and philosophical convictions, but do not have a right vis-a-vis a private institution which provides education on this basis, to have their children admitted to that education"(HR 22 January 1988 AB1988,no.96) 1. 2.2 European Social Charter n a case adjudged by the Hoge Raad, the Court relied on Article 6(4)of the European Social Charter, "on which employees and employers can rely directly"to find that under the circumstances a strike by employees of the Dutch railways was not illegal, notwithstanding certain(alleged) political overtones(HR 30 May 1986, NJ 1986, no 688, N.S. v Vervoersbond FNV e a.)
VAN EMPEL/DE JONG 8 The Court found that none of the three categories of interest should prevail over the two others in all circumstances. In particular, absolute protection for the right to information about the identity of the parents would have such far-reaching consequences, that such absolute protection could only be based on an explicit statutory provision to that effect (Court of Appeals, ‘s Hertogenbosch 18 September 1991, NJ 1991, 796). Article 9: Freedom of thought, conscience and religion - It was found in general terms that on the basis of Article 9, par. 2, it must be concluded that the law of torts can provide a legal ground or limitations upon the freedom of thought, conscience and religion (HR 5 June 1987, NJ 1988, 702). Article 10: Freedom of expression - In a case relating to TV broadcasting of football matches the Hoge Raad found that Article 10 does not impose as such a ban on the refusal of data to the newsgathering media (HR 23 October 1987, NJ 1988, 310). - In a judgment of 1988 the Hoge Raad found that under certain circumstances the interests protected under Article 8 and Article 10, respectively, will have to be balanced against each other (HR 4 March 1988, NJ 1989, 361). Article 2, First Protocol - In 1988, the Hoge Raad was confronted with a dispute concerning the refusal by the Maimonides Lyceum to admit a boy who was found not to qualify under the rules for admission reserved to Jewish children according to the guidelines of the Halacha. As to the impact of Article 2 First Protocol, ECHR the Hoge Raad found that "parents were entitled to respect for their choice of education based on certain principles corresponding to their religious and philosophical convictions, but do not have a right vis-à-vis a private institution which provides education on this basis, to have their children admitted to that education” (HR 22 January 1988, AB 1988, no. 96). 1.2.2 European Social Charter In a case adjudged by the Hoge Raad, the Court relied on Article 6(4) of the European Social Charter, “on which employees and employers can rely directly” to find that under the circumstances a strike by employees of the Dutch railways was not illegal, notwithstanding certain (alleged) political overtones (HR 30 May 1986, NJ 1986, no. 688, N.S. v Vervoersbond FNV e.a.)
CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS 1. 2.3 OECD Guidelines for Multinational Enterprises Whilst as has been indicated above, it is submitted that the case of the echr provides sufficient illustration for the mpact of intemational treaty noms on private agreements and tort actions under Dutch lw, attention should be drawn also to the fact that under specific circumstances such impact has also been found for certain rules which on the face of it were not intended to be binding. The prime illustration of this is the so-called BATCO-case which was adjudged by the Court of Appeals, Amsterdam on 21 June 1979, (NJ 1980, 71). The Court found that the closing by BATCO Nederland of its Amsterdam factory was illegal under the circumstances and should be blocked by an injunction. Amongst the circumstances relied on by the ourt, specific attention should be drawn here to the so-called Guidelines for ultinational enterprises (Annex to the Declaration of 21 June 1976 by Governments of OECD Mem ber Countries on Intermational Investment and Multinational Enterprises). These Guidelines provided i a. that nterpnises should (. in the case of the closure of an entity imolving collective lay-offs or dismissals, provide reasonable notice of such changes to representatives of their employees (.. and co-operate with the employee representatives (.) so to mitigate to the maximumextent practicable effects As it is, the Chairman of BAT Industries(the parent com pany of BATCO Nederland) ad gone on record as stating: The standards they (i.e. the Guidelines)set are very much in line with ourown established policies in these matters and we certainly support their efforts to have then widely applied It was under those circumstances that the Court found It is not without significance that BAT Industries has accepted the OECD Guidelines as guideline for its policy. These Guidelines too provide that m a case like the one umder consideration"consultations"with the representatives of the employees should take place. Under these circumstances, the termination by Batco Nederland of the consultations with the unions and the works council is a serious neglect of its obligation to consult. Therefore, BATCO Nederland acted in violation of fundamental principles of responsible entrepreneurship. The decision of B.alCO Nederland to cose its factory in Amsterdam, taken in violation of these principles, therefore is to be considered as mismanagement and should be annulled 1.2.4 General principles of public international law This translation has been taken from Andre Nollkaemper, Public Intemational law in Transnational Litigation Against Multinational Corporations: Prospect and problems in the Courts of The Netherknds, n M.T. Kamminga and S. Zia-Zarific (eds) Liabilty of Multinational Corporations Under International law, 200(p. 265)
CONSTITUTION,INTERNATIONAL TREATIES,CONTRACTS AND TORTS 9 1.2.3 OECD Guidelines for Multinational Enterprises Whilst as has been indicated above, it is submitted that the case of the ECHR provides sufficient illustration for the impact of international treaty norms on private agreements and tort actions under Dutch law, attention should be drawn also to the fact that under specific circumstances such impact has also been found for certain rules which on the face of it were not intended to be binding. The prime illustration of this is the so-called BATCO-case which was adjudged by the Court of Appeals, Amsterdam on 21 June 1979, (NJ 1980, 71). The Court found that the closing by BATCO Nederland of its Amsterdam factory was illegal under the circumstances and should be blocked by an injunction. Amongst the circumstances relied on by the Court, specific attention should be drawn here to the so-called Guidelines for multinational enterprises (Annex to the Declaration of 21st June 1976 by Governments of OECD Member Countries on International Investment and Multinational Enterprises). These Guidelines provided i.a. that: “Enterprises should (.) in the case of the closure of an entity involving collective lay-offs or dismissals, provide reasonable notice of such changes to representatives of their employees (.) and co-operate with the employee representatives (.) so to mitigate to the maximum extent practicable effects”. As it is, the Chairman of BAT Industries (the parent company of BATCO Nederland) had gone on record as stating: “The standards they (i.e. the Guidelines) set are very much in line with our own established policies in these matters and we certainly support their efforts to have then widely applied”. It was under those circumstances that the Court found: “It is not without significance that BAT Industries has accepted the OECD Guidelines as guideline for its policy. These Guidelines too provide that in a case like the one under consideration “consultations” with the representatives of the employees should take place. Under these circumstances, the termination by BATCO Nederland of the consultations with the unions and the works council is a serious neglect of its obligation to consult. Therefore, BATCO Nederland acted in violation of fundamental principles of responsible entrepreneurship. The decision of BATCO Nederland to close its factory in Amsterdam, taken in violation of these principles, therefore is to be considered as mismanagement and should be annulled.7 1.2.4 General principles of public international law 7. This translation has been taken from André Nollkaemper, Public International law in Transnational Litigation Against Multinational Corporations: Prospects and problems in the Courts of The Netherlands, in M.T. Kamminga and S. Zia-Zarific (eds) Liability of Multinational Corporations Under International law, 200 (p. 265)
VAN EMPEL/DE JONG In a case which received rather wide publicity in several regards a num ber of agricultural enterprises in The Netherlands had sued the French Potassium Mines in the alsace before the Dutch courts on a clam for damages for pollution of the rhine from which they took the water necessary for the exploita tion of their enterprises. At subsequent levels of proceedings this case gave rise to issues related to the impact of international law on tort lia bility before the dutch courts. In the first place, it had been held in the judgment in first instance by the district court that the general principle of public international law that a state may not use its territory for activities which cause damage to another state, should find application also between private parties. Moreover it found that infringement on this general principle provided a basis for claims for damages between private parties, also (District Court Rotterdam 8 January 1979, NJ 1979, no. 1 13: 16 Decem ber 1983, NJ 1984, no. 341). This judgment was quashed on appeal, where the case was decided on the basis of Dutch ational law alone( Court of Appeals The Hague, 10 September 1986, TMA 1987 15) The judicial function in enforcing constitutional and international 2.1 Extent ofintervention by the courts This paragraph deals with the extent to which national courts are expec ted to intervene to ensure enforcement of the const itut ional and international norms lim iting party autonomy Preliminarily we can say that the parties to a dispute can enforce the norms limiting party autonomy identified above before Dutch courts. All Dutch courts are entitled (and obliged) to apply these noms, as these norms are binding on all authorities (including courts). Moreover, for neither set of rules, constitutional or intemationaL, there are specal courts or specal procedures. National procedural law and national remedies are used for the enforcement and protection of constitutional and international norms and lim itations 2.1.1 Constitutional norms Dutch constitutional law distinguishes between cassic fundamental rights and berties and socal and economic fundamental rights. The first category of rights consists of directly applicable rights, which may be enforced before Dutch courts, either asa'shield against alleged violations. The majority of the socal fundamental rights, however, cannot be invoked in court as they are considered to be instructions addressed to the public authorities As already discussed above, before 1983 Dutch courts generally denied horizontal An example of application of social fundamentalrights i to be found in HR 14 April 1989, AB 1989, 486. Aso the social fumdamental norms may play an ndirect ole in judicial procedures, e.g. in case of disarm nation in the apphcation of the social night
VAN EMPEL/DE JONG 10 In a case which received rather wide publicity in several regards a number of agricultural enterprises in The Netherlands had sued the French Potassium Mines in the Alsace before the Dutch courts on a claim for damages for pollution of the Rhine from which they took the water necessary for the exploitation of their enterprises. At subsequent levels of proceedings this case gave rise to issues related to the impact of international law on tort liability before the Dutch courts. In the first place, it had been held in the judgment in first instance by the district court that the general principle of public international law that a state may not use its territory for activities which cause damage to another state, should find application also between private parties. Moreover it found that infringement on this general principle provided a basis for claims for damages between private parties, also. (District Court Rotterdam, 8 January 1979, NJ 1979, no. 113; 16 December 1983, NJ 1984, no. 341). This judgment was quashed on appeal, where the case was decided on the basis of Dutch national law alone (Court of Appeals The Hague, 10 September 1986, TMA 1987, 15). 2 The judicial function in enforcing constitutional and international norms 2.1 Extent of intervention by the courts This paragraph deals with the extent to which national courts are expected to intervene to ensure enforcement of the constitutional and international norms limiting party autonomy. Preliminarily we can say that the parties to a dispute can enforce the norms limiting party autonomy identified above before Dutch courts. All Dutch courts are entitled (and obliged) to apply these norms, as these norms are binding on all authorities (including courts). Moreover, for neither set of rules, constitutional or international, there are special courts or special procedures. National procedural law and national remedies are used for the enforcement and protection of constitutional and international norms and limitations. 2.1.1 Constitutional norms Dutch constitutional law distinguishes between classic fundamental rights and liberties and social and economic fundamental rights. The first category of rights consists of directly applicable rights, which may be enforced before Dutch courts, either as a 'shield' or as a 'sword' against alleged violations. The majority of the social fundamental rights, however, cannot be invoked in court as they are considered to be instructions addressed to the public authorities.8 As already discussed above, before 1983 Dutch courts generally denied horizontal 8. An example of application of social fundamental rights is to be found in HR 14 April 1989, AB 1989, 486. Also the social fundamental norms may play an indirect role in judicial procedures, e.g. in case of discrimination in the application of the social right