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 nowCONSTITUTION,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