2020 Highlighted

The Supreme Court’s key tasks

The Supreme Court hears and decides appeals in cassation. In doing so, it answers questions of law that arise in the cases before it. This is how the Court contributes to the development of the law and to legal protection, as well as promoting the uniformity of the law. The Court’s annual reports always devote attention to these three tasks.

Uniformity of the law
As the highest court in many areas of law, the Supreme Court makes an important contribution to the uniform application of the law in the Netherlands. It must work to ensure that the law is interpreted in the same way throughout the country. Its case law enables the lower courts to construe and apply legal rules consistently. Promoting the uniformity of the law is necessary in the public interest. The Supreme Court is the highest court in civil and criminal law. When it comes to administrative law, it is one of four highest courts, the other three being the Administrative Jurisdiction Division of the Council of State, the Central Appeals Tribunal and the Trade and Industry Appeals Tribunal. The Supreme Court is also the highest court in all tax matters and in some cases relating to social security and economic administrative law.

To ensure the uniformity of law, the highest administrative courts coordinate their judgments where necessary, for example where the interpretation and application of the General Administrative Law Act is at issue, through the Administrative Law Uniformity Committee (Commissie rechtseenheid bestuursrecht). The Committee publishes its own annual report (in Dutch), available here. The results of the Committee’s deliberations are not binding on the courts concerned. Nevertheless, the basic principle underlying the hearing of cases is that these courts bear joint responsibility for the uniform interpretation of the law.

To promote agreement between the highest administrative courts, judges may be appointed to more than one of them. For example, members of the Administrative Jurisdiction Division of the Council of State, the Central Appeals Tribunal and the Trade and Industry Appeals Tribunal participate in hearing each other’s cases when questions concerning the uniformity of law are at issue. Some members of the Supreme Court function as Extraordinary Councillors in cases heard by the Administrative Jurisdiction Division of the Council of State. Where relevant they share their experience and expertise in civil, criminal and tax law matters with the Administrative Law Uniformity Committee. They can also take part in hearings of the Administrative Jurisdiction Division where a ‘cross-court’ issue is at stake, including those cases referred to its ‘grand chamber’. Whereas a chamber generally consists of three members, the grand chamber consists of five, including one from each of the three other highest courts.

The participation of members of the Supreme Court in the work of the Administrative Jurisdiction Division has not to date been reciprocal. This is due to change in 2021. On 4 November 2020 a legislative amendment was published in the Bulletin of Acts and Decrees (Stb. 2020, 416) enabling judges from other administrative courts to be appointed to the Supreme Court as justices extraordinary. Consequently, a number of members of the Administrative Jurisdiction Division will be appointed to the Court as justices extraordinary in 2021. This is a welcome development, in the interests of the uniformity not only of administrative law, but also of civil and criminal law. The boundaries between areas of law are blurring: administrative sanctions such as administrative fines are connected to criminal law and there has long been a link between civil law and administrative law in areas such as government liability and damages. Because of its tasks in the fields of civil, criminal and tax law, the Supreme Court has always aimed for uniformity in and across all areas of law. Moreover, if the legal system is to remain manageable within the political and social order, it is vital for uniform legal concepts to be used in all areas of law. In addition, the uniform application of EU law in the Netherlands benefits from the existence of institutional mechanisms enabling the highest courts to share responsibility for the public administration of justice with the aim of bringing uniformity to the law.

Development of the law
In a democracy governed by the rule of law the judiciary is one of the three branches of government, alongside the executive and the legislature. Each branch of government has its own tasks. The independent courts decide in individual cases on the application of national and international legislation. The Supreme Court has an additional, specific duty to answer questions of law in the broad sense, including questions relating to interpretation of the law. In this way existing law is elaborated and further developed within the boundaries of the Supreme Court’s key tasks. The Court has a range of instruments at its disposal for promoting the development of the law: judgments in cassation proceedings; preliminary rulings on questions referred by the district and appeal courts; and cassation in the interests of the development of the law or the uniform interpretation and application of the law (cassatie in het belang der wet). In addition, the government may ask the Supreme Court and the Procurator General to provide advice or information, for example before presenting legislative proposals to parliament. There is thus communication between the different branches of government. This is essential, as the European Court of Human Rights noted:

“In the Court’s opinion, a certain interaction between the three branches of government is not only inevitable, but also necessary, to the extent that the respective powers do not unduly encroach upon one another’s functions and competences. The question is, once again, whether in a given case the requirements of the Convention are met (…).” [1]

[1] – EHRM [GC] 1 december 2020, Guðmundur Andri Ástráðsson v. Iceland, nr. 26374/18, par. 215.

The tasks of the Supreme Court in relation to the uniformity and the development of the law have long meant that when hearing or deciding on a case, the Court remains aware of the need to ensure that people in comparable situations, as well as the parties to the proceedings, know where they stand. This creates legal certainty and reduces the risk of new disputes involving the same question. The Supreme Court followed the same course in 2020. This annual report highlights a variety of judgments concerning recent legislation showing that within its key tasks, the Court responds to legal and social developments in answering questions of interpretation which have wider relevance than a particular case. In many instances these rulings include elements of legal protection.

Legal protection
Offering legal protection is one of the Supreme Court’s three key tasks. The 2019 annual report explained how the Court fulfils this duty in assessing individual cases on the basis of legal criteria. It gave examples of cases that concerned individual legal protection rather than any broader development of the law.

In addition to legal protection for the individual person or organisation lodging an appeal in cassation, in hearing and deciding on cases the Supreme Court has to remain alert to any wider implications for the legal protection of others in society. Furthermore, this task implies that the Supreme Court is able to counterbalance the other branches of government, for instance by resolving any deficiencies in legislation or its implementation that are revealed by a case or, if that would exceed its remit, by at least drawing attention to them. The legal protection task is essential to the balance between the three branches of government, which also serves the proper administration of justice. The Court’s legal protection role thus entails more than the individual legal protection of the parties to the proceedings. Like the district and appeal courts, the Supreme Court hears cases brought by individuals. In these cases the Court must take the correct legal decisions and guarantee that any legal errors in the judgment handed down by the previous court can be rectified. That is a task at individual level, the level of a single case. Often the task of the Supreme Court as highest court extends beyond the interests of the parties in a specific case. The individual legal protection sought in a particular case and the independent views expressed in the Advocate General’s advisory opinion provide a basis for the Supreme Court to make decisions in the performance of its tasks with respect to legal protection and the uniformity and the development of the law. This is illustrated in the 2020 annual report in the discussion of the judgments of the Civil Division on compulsory and involuntary care. The fact that requests for a preliminary ruling from the Supreme Court are in practice also recognised as a means of invoking the Court’s duty to offer legal protection is also illustrated by the Civil Division’s judgment of 6 November 2020 on the question of whether provisions concerning concurrence between annual leave and pregnancy and maternity leave conflict with the prohibition of sex discrimination. To sum up, the Supreme Court’s legal protection task embraces both the individual case and the general importance of cassation proceedings for society and for legal and social practice.