The Civil Division

In 2022, the Civil Division of the Supreme Court rendered over 400 decisions. Besides a wide array of general property law cases, again a great number of cases relating to family law, juvenile law, matrimonial property law and the law of inheritance (about 80) were presented to the Supreme Court. In addition, again, cases on employment law (about 50) and cases on compulsory mental healthcare (some 40) were submitted to the Supreme Court. Many of these cases concerned legal protection, but a number of cases revolved around development  and uniformity of the law.

In the field of family law, the Supreme Court, with a view to uniformity of law, adjudicated a claim for cassation in the interest of the law. The claim concerned the question of whether it can be legally agreed upon conclusion of a marriage that the right to spousal maintenance will be waived upon termination of the marriage, i.e. divorce (ECLI:NL:HR:2022:1724).

In answering questions referred for a preliminary ruling on gender-neutral registration and surrogacy, respectively, the Supreme Court observed restraint because these topics are the subject of an ongoing legislative process and therefore do not lend themselves to judicial development of the law at this time (ECLI:NL:HR:2022:336 and ECLI:NL:HR:2022:685). An overarching theme of the claim for cassation in the interest of the law and the questions referred for a preliminary ruling is the question of how social developments and views can be incorporated into our legal system. Sometimes the Supreme Court can provide clarity without taking the legislator’s place, and sometimes restraint is more suitable.

In the field of employment law, legal development decisions have been rendered on matters including the phenomenon of dormant employment contracts (ECLI:NL:HR:2022:1575 and 1576), the obligation to give notice when terminating fixed-term employment contracts (ECLI:NL:HR:2022:1374) and the prohibition on termination of employment during an employee’s illness (ECLI:NL:HR:2022:276). These concern questions of interpretation concerning the Work and Security Act introduced on 1 July 2015 (and to a lesser extent the Balanced Labour Market Act introduced on 1 January 2020), through which in particular employment termination law has been modified significantly. Since then, the Civil Division has answered many questions of interpretation, referred for a preliminary ruling or otherwise. More generally speaking, it can be concluded that in the first few years after larger system changes the Supreme Court is frequently called upon to provide clarity and uniformity of law.

This is also evident with the now three-year-old Compulsory Mental Healthcare Act and the Care and Compulsion (Psychogeriatric and Intellectually Disabled Persons) Act, which replaced the Psychiatric Hospitals (Compulsory Admissions) Act with effect from 1 January 2020. Also in 2022, these laws frequently raised questions of interpretation. Oftentimes, this comes down a balancing act in which the fundamental rights of those involved must be reconciled with the legislator’s intentions and the needs of actual practice. This is not always easy; see, for example, the evaluation report on these acts presented to the Minister on 21 October 2022. One case involved a matter of medical ethics that has divided opinion for many years: compulsory contraception (ECLI:NL:HR:2022:1850).

“Only” six questions were referred for a preliminary ruling in 2022 (compared to 20 in 2021). In view of the still erratic development in terms of the numbers of questions referred for a preliminary ruling in a given year, the question is whether this can be said to be a trend. One trend does seem to be the increase in the numbers of complex cases on the interface between civil law on the one hand and administrative law on the other, and on the interface with criminal law. One case that in 2022 proved to have a legal development effect is the decision on sales of immovable property by governments (ECLI:NL:HR:2021:1778, Didam). A circumstance that is helpful in the context of this trend is that in 2022 three State councillors of the Administrative Jurisdiction Division of the Council of State were appointed to the Supreme Court as justices extraordinary. At the intersection of tax law, reference can be made to the case law on the right to refuse to give evidence and to ECLI:NL:HR:2022:1579 on liability for cooperating in tax evasion. In the field of criminal law, there is an increasing number of cases on damages for injured parties. This was the subject of a joint opinion by advocates general from the Criminal Division and the Civil Division (ECLI:NL:PHR:2022:166) in 2022 for the sake of uniformity and development of the law. Mixed panels from different divisions are assembled to adjudicate such cases more frequently (e.g. ECLI:NL:HR:2022:958 on “nervous shock damages”).

Although the number of cases decreased slightly in 2022 (to 95% compared to 2021) and the Civil Division’s cases on hand also decreased slightly in number, case processing time has increased. This can be explained by the ever-increasing complexity and laboriousness of cases. This applies not only to the aforementioned cases on the interfaces between certain areas of law, but also to the often-laborious cases on financial services (investment insurance, interest rate swaps and the like), directors and officers liability and pension law. The year 2022 also saw a number of complex cases about the Healthcare Insurance Act. Invariably, the Supreme Court must be mindful of the aspects of such cases that transcend the case in question and try to asses as best as possible what the social impact of the Supreme Court’s decisions will be. That requires time and attention.