Cassation in the interest of the law

Applications

In 2024, the Procurator General received 38 applications for cassation in the interest of the law. This is eight more than the year before.

In the reporting period, eighteen rejection letters were sent in response to applications for cassation in the interest of the law. This is eight fewer than the year before. The most common reason for rejecting a request was that the request did not raise an issue of law that needed clarification  in the interest of the uniformity and development of the law, for example, because there was insufficient evidence of division in the case law regarding the issue in question.

Claims and decisions

In 2024, twelve claims for cassation in the interest of the law were submitted. That is seven more than the year before. This concerned six civil cases, five criminal cases and one tax case.

WHOA composition

A case in which a claim for cassation in the interest of the law was filed concerned the Act on the approval of a private agreement for the prevention of bankruptcy (WHOA). The WHOA entered into force on 1 January 2021. This Act offers viable companies in financial difficulties the possibility of restructuring their debts through a composition. A WHOA composition is intended to induce creditors to waive some of their rights. A composition is reached only if enough creditors vote in favour of the composition. The District Court must also approve the composition. This approval requirement is intended in part to protect those who voted against the composition from unfair and unlawful arrangements. If the District Court approves the composition, the creditors who voted against it will also be bound by it. The WHOA is widely applied, including by large companies. The interests, both for the company and the creditors, are often considerable.

The claim was directed against a judgment in which the District Court approved the WHOA composition offered by IHC Merwede Holding B.V. (IHC) to some of its creditors. Under the composition, the financiers were required to continue providing new financing in the future on the basis of the existing financing agreement. However, as part of the composition, the financing agreement had been changed in a number of important respects, so that the principles and terms under which the new financing must be granted had changed. The District Court held that imposing this obligation – i.e. the obligation to provide new financing on changed terms – is possible under the WHOA. Following the judgment in this case, the question had arisen in the professional literature whether a WHOA composition could change the terms of existing obligations, as the text of the Act only mentions the possibility of forcibly changing the rights of creditors. Given the importance of this question and the fact that the law does not allow the parties themselves to lodge an appeal or an appeal in cassation against the District Court's approval of a WHOA composition, the Procurator General decided to lodge an appeal in cassation in the interest of the law. In doing so, he chose to give stakeholders and interested parties the opportunity to comment on the said question so that the claim was based on information that was as complete as possible. Various organisations and persons made use of this opportunity. The responses have been made public and can be found on the Supreme Court's website. Following the Advocate General who filed the claim on behalf of the Procurator General, the Supreme Court ruled that it is not possible in a WHOA composition to force financiers to provide previously promised financing on changed terms. While a WHOA composition can limit the rights of creditors, it cannot change their obligations.

See ECLI:NL:PHR:2024:346 for the claim and ECLI:NL:HR:2024:1533 for the Supreme Court's decision.

"Convicted of a crime" in the National Ordinance on the Integrity of (Candidate) Ministers of the country of Curaçao

Another case in which a claim for cassation in the interest of the law was filed concerned a civil case against the country of Curaçao in which a former candidate Minister had claimed a declaratory decision that he had not been "convicted of a crime" as referred to in Article 7(1)(a) of the National Ordinance on the Integrity of (Candidate) Ministers in order to still be eligible for a ministerial post. He had previously withdrawn his candidacy after it was revealed that he had been convicted of a crime in the past without having received any sentence or non-punitive order (a judicial pardon). The Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba (hereinafter the "Joint Court of Justice") ruled that he had not been "convicted of a crime" as referred to in the said provision. The Procurator General filed a claim for cassation in the interest of the law. In his claim, he addressed, among other things, the legislative drafting history of the judicial pardon and concluded that the judicial pardon must be regarded as a conviction. The Supreme Court agreed with this.

See ECLI:NL:PHR:2024:354 for the claim and ECLI:NL:HR:2024:917 for the Supreme Court's decision.

Challenge due to participation in professional working group

Following a recommendation by the Committee for Cassation in the Interest of the Law, a claim for cassation in the interest of the law was filed in the reporting period against a decision of the challenge chamber of the Central Disciplinary Committee for the Healthcare Sector.

If one of the parties in a court case has the impression that the judge is biased or partial, they can request that the judge be replaced by another judge. This is called a challenge request. A challenge request is examined by a challenge chamber. In this case, a woman had filed a disciplinary complaint against a radiologist. She then filed a challenge request on the grounds that a member of the Central Disciplinary Committee who was to hear the disciplinary complaint was an acquaintance of the radiologist sued by her. Both were members of the Disciplinary Law working group. They saw each other at least once a year at the annual meeting of this working group. The challenge chamber allowed the challenge. According to the challenge chamber, the participation of the two professional colleagues in the same working group with a relatively small size of ten members in which disciplinary rulings were discussed was an objective fact that could have raised the fear on the woman's part that there was insufficient distance between the two members to assess the radiologist's professional conduct without bias. In his claim, the Advocate General who filed the claim for cassation in the interest of the law on behalf of the Procurator General pointed out that it is established case law of the European Court of Human Rights and of the Supreme Court that a judge must be presumed to be impartial by virtue of their appointment, unless exceptional circumstances arise that provide compelling indications that they have a bias that gives rise to an objective fear on the part of the party requesting challenge. Given that premise, according to the Advocate General, the mere participation in a professional working group, even if it is limited in scope, by both a member of a disciplinary board and the accused, is not in itself sufficient for a finding that there are circumstances which might create the appearance that judicial impartiality could be impaired. The challenge chamber of the Central Disciplinary Committee failed to acknowledge this, according to the Advocate General. Additional circumstances that can provide an objective basis for that fear were not established by the Challenge Chamber.

The Supreme Court rendered a decision in this case in early 2025. The Supreme Court held that the Central Disciplinary Committee for the Healthcare Sector could grant the challenge request. The Central Disciplinary Committee for the Healthcare Sector had to assess whether the facts alleged by the applicant objectively justified her fear of bias. An opinion in this regard depends on the circumstances of the case. The Supreme Court finds that the challenge chamber of the Central Disciplinary Committee used the correct standard in assessing the challenge request. In deciding whether this standard has been met in a specific case, the Central Disciplinary Tribunal, as the challenge court, has broad discretion. In this case, the challenge request is based on the fact that the member-colleague, together with the accused radiologist, who is thus a party to the proceedings, is part of a small working group in which disciplinary rulings are discussed. It cannot be said that a challenge request can never be granted if it is based solely on that ground. The opinion of the Central Disciplinary Tribunal therefore does not, according to the Supreme Court, demonstrate an incorrect interpretation of the law. It follows from this that the challenge decision can be maintained.

See ECLI:NL:PHR:2024:858 for the claim and ECLI:NL:HR:2025:87 for the Supreme Court's decision.

The other cases for which claims were submitted in 2024 were:

Civil law

• The question of whether the Certified Institution is an interested party in proceedings between parents over custody and/or access. See ECLI:NL:PHR:2024:434 for the claim and ECLI:NL:HR:2024:1079 for the Supreme Court's decision.
• The question of whether the single-judge subdistrict court in civil proceedings can refer a subdistrict court case to a three- or five-judge subdistrict court. See ECLI:NL:PHR:2024:644 for the claim and ECLI:NL:HR:2024:1724 for the Supreme Court's decision.
• The question of whether the subdistrict court or the ordinary civil division of the District Court has jurisdiction to hear claims based on Articles 4:29 and 4:30 of the Dutch Civil Code regarding usufructs for support. The question of law has been brought to the attention of the Procurator General by the Committee for Cassation in the Interest of the Law. See ECLI:NL:PHR:2024:1129 for the claim. The Supreme Court has not yet rendered a decision.

Criminal law

• The question in which cases and on what conditions the costs incurred by an interested party in connection with the handling of the objection or administrative appeal against a sanction referred to in the Traffic Regulations (Administrative Enforcement) Act are eligible for reimbursement. The question of what consequences exceeding the ‘reasonable time’ limit for trial must have on the reimbursement of legal costs is also addressed. See ECLI:NL:PHR:2024:376 for the claim and ECLI:NL:HR:2024:1012 for the Supreme Court's decision.
• The question of whether a negative decision of the District Court on an application to suspend custody awaiting extradition can be appealed. See ECLI:NL:PHR:2024:825 for the claim and ECLI:NL:HR:2024:1735 for the Supreme Court's decision.
• The question of when it is reasonable to assume that, given the nature of the crime, the determination and processing of a DNA profile cannot be of significance for the prevention, detection, prosecution and adjudication of crimes (Article 2(1)(b) of the DNA Testing of Convicted Persons Act). This also raises the question of whether the nature of the crime must be inferred from the legal classification, from the circumstances of the case, or from both. See ECLI:NL:PHR:2024:763 for the claim and ECLI:NL:HR:2024:1694 for the Supreme Court's decision.
• Various questions of law concerning the issue regarding the conditional hospital order declared immediately enforceable. See ECLI:NL:PHR:2024:656 for the claim and ECLI:NL:HR:2024:1729 for the Supreme Court's decision.
• Whether a decision to convert community service to substitute detention as referred to in Article 6:3:3 Code of Criminal Procedure must be signed and dated. See ECLI:NL:PHR:2024:1388 for the claim. The Supreme Court has not yet rendered a decision.

Tax law

• The question of whether sound business practice allows profit recognition by revaluing assets in order to prevent loss evaporation and the question of whether there is a sufficient legal interest in objecting to and appealing against the refusal to recognise those profits if they do not reduce the assessment for the year in question and – unlike in ECLI:NL:HR:2024:265 – there is no decision to offset losses as a legal remedy. See ECLI:NL:PHR:2024:777 for the claim. The Supreme Court has not yet rendered a decision.