The Constitution provides the framework for the organisation of the Dutch state and forms the basis for legislation.
Treaties between the Netherlands and other states are a major source of law. Article 93 of the Constitution stipulates that provisions of treaties and of decisions by international institutions may have direct effect in the Dutch legal system, in which case these provisions take precedence over Dutch laws. Thus, statutory regulations that apply within the Kingdom of the Netherlands do not apply if they are incompatible with those provisions. Therefore, the regulations of the European Union laid down in treaties, regulations and directives are a major source of law in the Netherlands.
The Charter for the Kingdom of the Netherlands regulates relations between the three parts of the Kingdom (the Netherlands and the two overseas parts, the Netherlands Antilles and Aruba).
Laws are made at national level.
By means of delegation by law, the central government may lay down (further) rules in orders in council and in ministerial regulations. Independent orders in council (which are not derived from a law) are possible, but cannot be enforced by a penal provision.
The Constitution confers regulatory authority upon the lower bodies under public law (provinces, municipalities and water boards).
General principles of law are of relevance to government and the dispensation of justice. Sometimes, this is implied by the law, as in the Civil Code for instance (reasonableness and fairness). The court may also take its cue from general principles of law when passing judgment.
Customary practice is a further source of law. In principle, customary practice is only relevant if the law refers to it, but again the court may take account of customary practice in its judgment, if there are any conflicts. Customary practice cannot be a source of law when establishing a criminal offence (Art. 16 of the Constitution).
Legal precedents are a source of law, as court rulings have wider significance than the specific case in respect of which that ruling was pronounced. The rulings of higher courts of justice serve as guidance. Those of the Supreme Court are particularly authoritative as the task of this court of justice is to promote uniformity in law. In new cases, therefore, the lower court will consider a ruling of the Supreme Court when reaching judgment.
Art. 94 of the Constitution states that some international rules of law take hierarchical precedence: statutory provisions that are incompatible with these rules do not apply. European law, by its nature, takes precedence over national law. This is followed by the Charter, the Constitution and the Acts of Parliament. These rank above other regulations. Acts of Parliament are adopted jointly by the government and the States General (the people’s elected representatives).
It is also stipulated that a law may wholly or partially lose its effect only as a result of a subsequent law. In addition, there is a general rule of interpretation whereby specific laws rank above general laws.
In the continental tradition, law is considered to be a higher source of law than legal precedents.
Treaties require the approval of the States General, which may be either tacit or explicit. Explicit approval by a two-thirds majority is required for a treaty containing provisions that deviate from the Constitution.
Treaties are published in the Traktatenblad, the Bulletin of Treaties. They are deemed to have been published throughout the Kingdom as of the first day of the second calendar month following the date of issue of the Bulletin in which they were published. The Kingdom Act of 7 July 1994 containing Regulations on the Approval and Publication of Treaties and the Publication of Decisions of International Organizations contains provisions on this.
As regards the European Union’s legal instruments, regulations, by their nature, have direct effect within the national legal system. Other legal instruments, such as directives, are aimed at the Member States and must be transposed into and implemented in national law. European law is implemented at all levels of national regulation. Thus, depending on the level and the subject of implementation, they will be implemented in laws, in orders in council or in ministerial regulations.
The government negotiates treaties and international agreements. However, the Kingdom cannot be bound by those treaties until they have been approved by the States General.
A basic premise is that the essential elements of significant provisions that are binding on citizens are established by law. Laws (including the Constitution) are adopted jointly by the government (i.e. the King and Ministers) and the States General.
The government is authorised to issue orders in council. Usually, Parliament is not involved in this, except on those occasions when orders in council are sent for approval to the Lower House, in which case it does have some control.
The individual ministers can draw up ministerial regulations. Ministerial responsibility to the parliament also applies in this instance.
The regulations of the lower bodies under public law are adopted by the people’s representation at the various levels (provincial states, municipal council, the elected council of the water board).
The Constitution does not provide for a “legislative power”. Laws are a joint decision of the government and States General. Legislative proposals can be submitted by the government or the Lower House of the States General. The Council of State advises on legislative proposals, as well as on orders in council. Other stakeholders are generally consulted when a legislative proposal is being prepared. The Lower House has the right of amendment. Usually, the Council of Ministers adopts legislative proposals and sends them to the Council of State for its recommendation. The government responds to that recommendation by drawing up a further report. Then, the government sends the legislative proposal – with any necessary amendments – to the Lower House by Royal Message. The proposal may be amended while it is being debated by the Lower House. Once it has been accepted by the Lower House, the Upper House debates the proposal. No further amendments may be made at this stage; the Upper House may only accept or reject the legislative proposal. Once it has been accepted by the Upper House, the head of state ratifies the proposal and it becomes law.
Laws are signed by the King and ratified by the minister responsible. In order to take effect, the law must first be published in the Staatsblad (Bulletin of Acts and Decrees) (Art. 88 of the Constitution). The Minister of Justice is responsible for the publication of the law. Usually, the text of the law will state when that law shall take effect.
Likewise, orders in council cannot take effect until they have been published in the Staatsblad. Ministerial regulations are published in the Nederlandsche Staatscourant, the Netherlands Government Gazette.
Provincial and municipal bye-laws are not binding until they have been published (see, for example, Art. 139 of the Municipalities Act).
At the preparation stage, all laws and orders in council are first checked by the Ministry of Justice, which verifies, inter alia, their lawfulness (conformity with higher law) and consistency with other rules. The Council of State also considers these two elements in its recommendation.
There are no provisions other than the abovementioned rules of conflict (high ranks above low, new above old, special above general). The court cannot check the law against the Constitution, but it can check it against international rules of law. If laws are found to be incompatible, in specific cases the court must find a solution to this. This might also be grounds for the government to propose an amendment to the law.
Regulations – as well as other decisions – of lower bodies under public law (such as provinces, municipalities and water boards) may be annulled by higher government bodies such as the Crown, on the grounds of incompatibility with the law or the general interest. The courts may also declare such regulations to be non-binding.Top
Last update: 27-06-2005