Contacts with the legislator

Advisory opinions on legislative proposals

The President of the Supreme Court and the Procurator General at the Supreme Court may provide advisory opinions on draft legislative proposals at the request of the Minister of Justice and Security. Generally, advisory opinions are given on proposed legislation relating to the judicial organisation and coordination within it, and on changes to procedural law. Political aspects and choices are excluded from the advisory opinions.

The choices made in the advisory role take into account that the President and the Procurator General cannot anticipate future proceedings before the Supreme Court regarding the interpretation and application of provisions that have been proposed and may become law. The joint responsibility of the three branches of government for human freedom and dignity, the principles of the rule of law based democracy, and the values of the European Union are also taken into account.

The advisory opinions issued are published on the Supreme Court’s website. In 2023, the President and the Procurator General provided two advisory opinions on proposed legislation (in 2022: three). These were:

• Opinion on the proposal for the General Administrative Law Guarantee Function Act (wetsvoorstel Wet waarborgfunctie Awb)
• Opinion on the proposal for the Political Parties Act (wetsvoorstel Wet op de politieke partijen)

Dialogue

As an institution, the Supreme Court fulfils an autonomous role in the good relations between representatives of the three branches of government. The President of the Supreme Court and the Procurator General at the Supreme Court perform a linking figurehead function that manifests itself mainly in contacts and conversations. Good relations contribute to mutual respect and an understanding of one another's responsibilities in the state and society. A direct dialogue between representatives of the branches of government allows for an exchange of views on the shared underlying responsibility for the function of the law in upholding human freedom and dignity, the principles of the rule of law based democracy, and the values of the European Union.

Such a dialogue does not concern pending or future cases, but concerns topics that promote the understanding of and insight into one another's work. What information does one need about the nature of the other's work in order to do one's work as effectively as possible? An example of the contacts in 2023 is the working visit by Senators to the Supreme Court on 7 November 2023. During interactive sessions, members of the Senate, the Supreme Court and the Supreme Court's Procurator General's Office asked each other questions and exchanged experiences. The use of the annual report provides another example. Over the course of the year, the content of the Supreme Court's annual report was regularly used as a tool in the dialogue with representatives of the legislative branch.

Signals to the legislature

Since 2017, the Supreme Court’s annual report has included an overview of decisions that draw the legislature’s attention to a specific problem, also referred to as signals to the legislature. There were six such decisions in 2023, compared to ten in 2022, ten in 2021, eight in 2020, four in 2019, ten in 2018 and fourteen in 2017.

This 2023 overview briefly specifies judgments containing a signal to the legislature, presenting them in chronological order. They deal with the interpretation and application of legislation in light of the Supreme Court’s duties to promote uniformity and development of the law and offer legal protection at the level of individual cases and the level that transcends individual cases.

The selection of such decisions is not based on a systematic approach. The overview is provided in light of the Supreme Court’s duties of promoting the uniformity and the development of the law and offering legal protection. The executive, legislative and judicial branches of government each have their own responsibilities under law when legislation is drafted. They all share an interest in effective legislation that offers legal certainty to those seeking justice and to society as a whole. In serving this interest they also interact with each other. Effective interaction between representatives of the three branches will, among other things, enhance the quality of justice. Over the years, the inclusion in the Supreme Court’s annual report of signals to the legislature has become a signal in itself of the importance of helping to ensure, with a view to judicial decisions in case law, that problem areas in the law can be recognised and resolved in a timely manner.

For example, decisions in this overview may include a problem area encountered by the Supreme Court while applying legislation to a case. Giving signals can help society and those involved in the administration of justice understand what legal and technical problems the Supreme Court encounters in practice. Signals are intended as an aid, alongside the weekly publication of Supreme Court decisions on rechtspraak.nl. It is up to the legislature to decide whether it wants to respond to a signal from the Supreme Court, for example with a legislative procedure or through a dialogue between co-legislators.

The signals to the legislature in the Supreme Court’s annual reports are of a variable nature. This may include, for example, the indication of legal problem areas, but it may also concern the identification of deficiencies in the law. Examples of points meriting attention that are of a technical legal nature include gaps in statutory law, rules that contravene higher-ranking rules, unclear regulations, or regulations that are not sufficiently harmonised with one another. Addressing a shortcoming in the law stems from the Supreme Court’s duty to provide legal protection and promote the development of the law.

Signals from the Supreme Court to the legislature are unrelated to choices that are not up to the court, such as political choices. In some cases, the Supreme Court may, within the scope of its duties, offer a solution to an identified problem area in its decision on the case. In other cases, the decision will indicate that this is in fact impossible or undesirable under the applicable law. Signals from the Supreme Court to the legislature are confined to questions that the Supreme Court encounters in its case load.

Judgments

Two decisions rendered on 31 January 2023 (ECLI:NL:HR:2023:128 and ECLI:NL:HR:2023:81) by the Criminal Division of the Supreme Court dealt with the assessment framework in complaint procedures regarding seizures. The Supreme Court devoted some of the findings in these decisions (para. 2.6 in both decisions) to drawbacks of the current system of remedies in complaint procedures regarding seizures. In its findings, it took into consideration the criminal investigation, passage of time, application of law, nature of decisions in complaint procedures and procedural requirements arising from ECtHR case law. The Supreme Court held that it is up to the legislature whether to provide for a different system of remedies for complaint procedures.

In a decision of 18 August 2023 (ECLI:NL:HR:2023:1094) on turnover tax and private use of a passenger car provided by the employer to the employee, the Tax Division observed that the fourth paragraph of Article 25e of the State Taxes Act (Algemene wet inzake rijksbelastingen) makes no mention of taxes paid via tax return, which include turnover tax. That provision regulates cases in which the Inspector is wholly or partially ruled against in an irrevocable judgment in the test case referred to in the first or second paragraph of Article 25e of the State Taxes Act. It follows from the second sentence of Article 25e(4) of the State Taxes Act that, in such a case, the Inspector must issue a refund within six months of the notification of the collective decision if the objection relates to tax withheld or tax remitted via tax return. The provision does not mention taxes paid via tax return, such as turnover tax. The Supreme Court found that the legislature apparently overlooked this and, by analogy with Article 65(2) State Taxes Act, also considered this provision applicable to taxes paid via tax return.

In a decision rendered on 25 August 2023 (ECLI:NL:HR:2023:1130) by the Civil Division of the Supreme Court on the law of inheritance (objection to a distribution list, Article 4:218(3) of the Civil Code (Burgerlijk Wetboek)), the Supreme Court ruled on an appeal in cassation filed against a decision of a first instance Court. That decision was not open to appeal. Pursuant to Article 80(1) of the Judiciary Organisation Act (Wet op de rechterlijke organisatie), the appeal in cassation was admissible, but the decision of the first instance Court was not open to appeals on issues of law. However, it could be argued that the decision did not contain the grounds on which it was based (Article 80a(1), opening words and (a), Judiciary Organisation Act). The Supreme Court found that the justification of this restriction was questionable in such procedure, which may involve substantial financial interests, while the same restriction does not apply when following a different procedure, namely the appointment of a supervisory judge for liquidation pursuant to Article 4:208(1) of the Civil Code. The Supreme Court stated that the legislative history does not show that the legislature recognised that Article 80(1) of the Judiciary Organisation Act applies if no supervisory judge is appointed. However, this was insufficient reason to disapply Article 80(1) of the Judiciary Organisation Act in this case.

A decision of 1 September 2023 (ECLI:NL:HR:2023:1148) by the Civil Division of the Supreme Court pertained to a question of juvenile law, namely whether a perspective decision of a certified institution can be submitted to the juvenile court via the dispute resolution procedure of Article 1:262b of the Civil Code. The Supreme Court ruled that the law does not allow this on its own. A perspective decision contains a certified institution’s opinion on whether a child placed in care can still be returned to the parental home.
The decision followed a claim for cassation in the interest of the law by the Procurator General at the Supreme Court. In the decision, the Supreme Court stated that it is up to the legislature to provide for a judicial process within the system of Book 1 of the Civil Code if the legislature finds it desirable to allow the perspective decision as such to be reviewed in court. The issue has the attention of the legislature (see, for example, Parliamentary Papers II 2023/24, 31839, no. 985, pp. 4-5).

A decision of 3 November 2023 of the Civil Division (ECLI:NL:HR:2023:1502) pertained to mandatory mental healthcare. The case concerned the question of whether an emergency measure, or an authorisation to continue such measure (Article 7:1 and Article 7:7 of the Mandatory Mental Healthcare Act (Wet verplichte geestelijke gezondheidszorg)), could provide that the individual in question be admitted to a forensic psychiatric centre (FPC), an institution as referred to in Article 3.1(1) or Article 3.3(1) of the Forensic Care Act (Wet forensische zorg). In its affirmative reply, the Supreme Court called attention to a difference between the legislation on emergency measures and the legislation on care authorisations.

When a court grants a care authorisation, the law explicitly provides for the option to stipulate whether the individual in question can or must be admitted to an FPC (Article 6:4, (3) to (5), Mandatory Mental Healthcare Act). The law does not provide for that option in that manner in the case of an emergency measure or continuation thereof (Articles 7:1 and 7:7 Mandatory Mental Healthcare Act). There is no explanation for this in the legislative history. The considerations underlying Article 6:4, (3) to (5), Mandatory Mental Healthcare Act also apply to admission under an emergency measure (or continuation thereof). It is possible to stipulate in an emergency measure or an authorisation for the continuation thereof whether the individual in question can or must be admitted to an FPC. The terms ‘healthcare provider’ and ‘accommodation’ (Article 1:1, (b) and (w), Mandatory Mental Healthcare Act) are defined broadly. This includes the provision of care in an FPC. However, there is no statutory provision that – like Article 6:4(5) of the Mandatory Mental Healthcare Act – explicitly provides for the application of powers of administration when someone is placed in an FPC under an emergency measure (or continuation thereof). It is clear that the legislature considers placement in an FPC possible only if powers of administration are declared to apply to it. The mayor or the court will have to arrange for this where appropriate.