The Netherlands: The pragmatics of a flexible, Europeanised constitution

L.F.M. Besselink, M. Claes

Research output: Chapter in Book/Report/Conference proceedingChapterAcademic

Abstract

The constitution of the netherlands, which dates back to 1814–15, is an evolutionary constitution, based on incremental historical developments. A notable feature is that the constitution bans constitutional review of acts of parliament and of treaties. A bill of rights was introduced in 1983; however, it omits a number of rights included in the echr and the eu charter. Constitutional rights are not justiciable, in the sense that they cannot be invoked against primary legislation. The echr and the eu charter are often regarded as providing stronger protection. Due to historical reasons, the notions of sovereignty and the people as the ultimate source of public authority have been absent in the dutch legal and public discourse. The dutch constitution does not have the centrality to public debate that constitutions have in other western countries. A salient feature of the constitution is that although it does not mention the eu or the echr, it opens the legal order for both nearly unconditionally, granting them primacy over any conflicting national law. Contestation and conflict sensitive and fundamental constitutional issues are rare in the courtroom or in legal terms. Court cases have raised the question whether national institutions can derive powers from an eu measure directly, e.g. When imposing the obligation to repay eu subsidies, and whether an international technical standard that is available only after payment can be legally binding on individuals.
Original languageEnglish
Title of host publicationNational constitutions in European and global governance: Democracy, rights, the rule of law. National reports
EditorsA. Albi, S. Bardutzky
Place of PublicationThe Hague
PublisherT.M.C. Asser Press
Pages179-220
ISBN (Electronic)978-94-6265-273-6
ISBN (Print)978-94-6265-272-9
DOIs
Publication statusPublished - 2019

Cite this

Besselink, L. F. M., & Claes, M. (2019). The Netherlands: The pragmatics of a flexible, Europeanised constitution. In A. Albi, & S. Bardutzky (Eds.), National constitutions in European and global governance: Democracy, rights, the rule of law. National reports (pp. 179-220). T.M.C. Asser Press. https://doi.org/10.1007/978-94-6265-273-6_5