Die rechtsfortbildende Funktion des Hoge Raad der Nederlanden

The Law-Creating Function of the Hoge Raad der NederlandenThe Hoge Raad der Nederlanden (the Dutch Supreme Court), established in 1838, is a court of cassation after the French model. During the 18th century, the jurisprudence of the Hoge Raad was formalistic in nature: the law was followed to the letter. After the landmark ruling of 1919 (Cohen ./. Lindenbaum), the Court changed to a more liberal method of interpretation, recognizing the existence of unwritten law. The legislature did not adapt to this view until 1963. The Hoge Raad reviews decisions of (mainly) the courts of appeal on matters of law, based on the facts established by these courts. It is not a constitutional court in the usual sense, as it lacks the power to test statutes enacted by the central legislature (government and parliament) against the Constitution. However, the Dutch Constitution does prescribe that the courts not apply a national law if, in a specific case, that law is incompatible with an international, self-executing treaty. Apart from the common way of bringing about the unity of jurisprudence and further developing the law – by review in cassation – the Hoge Raad has an additional and longstanding instrument: »cassation in the interest of the law« (cassatie in het belang der wet). When the original parties cannot or merely do not bring their case before the Hoge Raad, but the Procurator-General is of the opinion that a ruling of the Hoge Raad is indicated, he can bring the case before the Hoge Raad himself. The decision of the Hoge Raad is of no influence on the legal position of the original parties. In civil cases, this instrument is applied no more than (on average) three times a year.In 1988, aiming to reduce the case load of the Hoge Raad, the legislature introduced the possibility to reject, with no further explanation, appeals that raise no questions of law which need answering in the interest of the further development of the law. This provision has evolved into an important one: at its peak, about 70% of all civil decisions of the Hoge Raad were based on it. In 2012, as an implementation of the recommendations of a committee (chaired by former justice Alfred Hammerstein) that was tasked with finding ways of enabling the Hoge Raad to concentrate on cases containing important questions of law, a new article was introduced, giving the Hoge Raad the option not to deal with appeals that obviously cannot lead to the cassation of the challenged decision, and which for that reason would culminate in a decision with a summary ruling as mentioned before. Another important novelty was the introduction, also in 2012, of the possibility for lower courts to put preliminary questions to the Hoge Raad. The courts can do so if they are confronted with a legal question that has not been ruled upon yet by the Hoge Raad and that has been or will be raised in numerous pending or potential cases. The Hoge Raad gives the parties the opportunity to argue their case in court, and can also allow third parties – as either specifically requested by the court, or at their own request – to present their opinions. This new instrument has proved to be a major success: during the first three years an average of over eight preliminary cases was brought before the Hoge Raad. They have covered a wide spectrum of legal questions: execution of notarial deeds, the legal status of »free« mobile phones in combination with telecom subscriptions, attachment of evidence, interruption of the limitation period in collective actions, and insurance for legal expenses. Preliminary cases are treated with priority. In most cases, judgment is passed in less than seven months.