The European Court and national courts, doctrine and jurisprudence : legal change in its social context, report on the Netherlands

Abstract

The Netherlands do not seem to fit well within this research project. All commentators, both inside and outside the Netherlands, agree that the reception of the European Court's direct effect/supremacy doctrine has gone very smoothly in the Netherlands, without major doctrinal controversies or judicial hesitations. Comparative studies of the domestic reaction to the supremacy and direct effect doctrines do not dwell on this country, and quickly move to other, more interesting cases such as those of France, Italy, Germany or the UK. We will not challenge that view here; the constitutional setting of the Netherlands is indeed optimal if compared to those other countries. Yet, the reaction to the direct effect/supremacy doctrine has not been without some ambiguities. In the second part of the report, we will look into them, and hope to show that even in the Netherlands the reception of the European Court's doctrine has not gone without some distortions of the message from Luxembourg. The first part will deal with something else. Before looking at the reception of the direct effect/supremacy doctrines, we will look at their conception. Those doctrines did not appear out of the blue. The European Court had its own intellectual sources from which it derived the formulation of those doctrines, and those sources, apart from sparse references in the case-law of international courts, were to be found in national law. The link between the direct effect doctrine and the American doctrine of self-executing treaties is well-known, but the 'European' sources of the Court's doctrine are less completely explored. The constitutional law of the Netherlands is, arguably, one of its major sources of inspiration. The first part of the report will therefore deal with the contribution of the Dutch legal order to the emergence of the European Court's doctrine.