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Parliamentary Elections in the Netherlands and the Rule of Law

Dutch voters will head to the polls for snap parliamentary elections on 22 November, an election called after the collapse of Mark Rutte’s government due to internal disagreement on migration policy. Elections to parliament are based on an open list proportional representation system with the entire country being one electoral district. There is only the “natural threshold” of representation (total votes cast divided by 150 seats). In the last general elections, this meant a quota of 69,485 votes per seat.

The People’s Party for Freedom and Democracy (VVD) has not suffered significantly despite Mark Rutte’s departure, as it leads with 18 % in current polls. However, VVD faces strong competition from the recently established New Social Contract (NSC), led by Peter Omtzigt, a former member of the Christian Democrats. The new VVD leader Dilan Yeşilgöz, has adopted a firm stance on migration, vowing to introduce a two-tier asylum system based on countries of origin, and exercise a better control over all forms of migration. Unlike her predecessor, she has not ruled out collaborating with Geert Wilders, the leader of Party for Freedom (PVV), known for his anti-immigration stance, whose manifesto calls for an end to providing asylum and for a ban on “Islamic schools, Qu’rans and mosques”. Wilders’ party ranks fourth in the polls (with 15 %), following VVD, NSC (16 %) and Green-Labor Alliance (16 %).  

Peter Omtzigt, leader of NSC, explicitly ruled out working with Wilders, stating that as a party you can only form a government that sticks to classic fundamental rights”. Omtzigt has played a prominent role in exposing the childcare benefits scandal which eventually led to the downfall of the third Rutte-led government in 2021. He has expressed concerns about the Netherland’s rule of law performance, and advocates for a political culture in which parliament plays a more prominent role than it does now. 

In pre-election debates, the party leaders have discussed housing, healthcare, the cost of living – matters close to the voters’ hearts. Rule of law issues may not be central to the current debate but are likely to resurface after the elections, given concerns about flaws in the formal framework and problematic patterns in politicians’ behaviour.

Looking beyond rule of law rankings 

The Netherlands boasts a relatively solid rule of law record and is placed high in relevant rankings. However, the childcare benefits scandal, which led to the government’s resignation in January 2021, demonstrated that even in countries like the Netherlands the rule of law resilience can face challenges. The childcare benefits scheme caused severe financial hardship to thousands of low-income parents, who were falsely accused of fraud and ordered to pay back allowances. The issue arose from the authorities’ disregard for the rule of law requirements, including the principle of non-discrimination in their efforts to combat fraud. According to Amnesty International, racial and ethnic discrimination was embedded into the design of the algorithmic system used to identify potentially fraudulent claims for childcare benefits, a problem which has been resurfacing in other contexts since then.  

The childcare benefits scandal brought attention to aspects of legal framework and political culture that weaken checks on the executive, including parliamentary and judicial oversight. The starting point was the legislation lacking hardship clauses and restricting the courts’ capacity to mitigate the adverse consequences of the law. The scandal, according to the Venice Commission, also revealed that the government impeded parliamentary scrutiny by withholding information or providing incorrect information, violating constitutional obligations. The Venice Commission pointed out that in parliamentary systems with majority governments, where political culture does not perceive institutional separation between the parliament and government, the effectiveness of parliamentary scrutiny may suffer. The opinion stressed that participation in the parliamentary scrutiny of government is not an act of disloyalty. The Venice Commission also highlighted judicial deference to the Parliament as another issue and proposed that this issue could be addressed through cultural changes within the judiciary itself. For the Commission, a key problem was that courts did not intervene decisively against the Tax and Customs Administrations’ problematic interpretation of the law. 

The absence of a constitutional court also emerged as a limitation. Article 120 of the Dutch Constitution precludes courts from reviewing the constitutionality of laws and treaties. According to the Venice Commission, it was not a problem in most cases, because Dutch courts can refuse to apply the law contradicting international law, but in this case the Council of State decided that the European Convention on Human Rights did not apply. Hence, international law did not work as a safeguard against problematic interpretation of the relevant legislation concerning childcare benefits. Still, the Venice Commission cautioned that introducing constitutional review (amending Article 120 of the constitution) is neither obligatory nor necessarily a quick fix and should be based on profound analysis.   

The Dutch judiciary has sought to draw lessons from the childcare allowance scandal and provide adequate follow-up to the findings . The Supreme Court and the Council for the Judiciary use their annual reports to flag potentially problematic rules, and the Council of State has announced its intention to “increased signalling of such legislation”. A new approach in the case law of the Administrative Jurisdiction Division of the Council of State involves closer scrutiny of the proportionality of administrative measures. 

The Government reported to the European Commission that it would collaborate with the parliament, to work  towards establishing a system of constitutional review in 2023. In February 2023, the government established a commission to get advice on structural changes needed to enhance the rule of law from a citizen’s perspective by June 2024. The observers welcomed this development, but emphasised that this should not be a reason for delaying the implementation of urgent measures.  In February 2023, the Parliamentary Committee of Inquiry was set up, in response to investigations indicating that the tax authorities had not respected the principle of equal treatment and non-discrimination in their approach to combat fraud. The Committee will focus on public authorities’ use of algorithms. 

 

Rule of Law Challenges 

Judiciary 

In addition to the challenges identified above, a few others are related to the weakness of formal safeguards against the abuse of power by political branches that remain involved in decision-making concerning judicial careers.    

  • Judges do not elect judge members of the governing bodies, such as the Council for the Judiciary, among themselves. Discussions about amending the selection procedure for Council members to limit the influence of the Minister of Justice and Security are ongoing. Such amendments would limit room for abuse by the executive and be consistent with Council of Europe recommendations.   
  • The Minister of Justice and Security has a role in judicial appointments, verifying the compatibility of candidates with the legal requirements and appointing them. In practice, however, the Minister has always followed the Council’s recommendations.  
  • Currently, the parliament has a role in appointing Supreme Court judges: It selects and ranks three candidates from a list of six drawn up by a Committee of Supreme Court judges, and invites the first-ranked person for an interview and possible appointment. The Government originally committed to a constitutional revision limiting the role of parliament, but eventually abandoned the proposal, based on the advice of the Council of State. The Council of State concluded that the parliament’s current role enhances the democratic legitimacy of the procedure, and that the engagement of the Committee of the Supreme Court judges already sufficiently prevents undesired political influence. 
  • The power of the executive to give instructions to prosecutors in individual criminal cases, even if rarely used in practice, potentially endangers prosecutorial independence. The removal of this power has been discussed. Such a change would be consistent with the Council of Europe recommendations. However, the Council of State has questioned the need for change, suggesting the current balance between the independence of the prosecution service and the political responsibility of the Minister of Justice and Security is adequate. As highlighted by the Venice Commission, the prosecution service itself does not see the need for amending legislation, since the Minister has not used this power in practice and the law on judicial organisation contains adequate accompanying guarantees.   

So far, the conduct of these political branches has not posed a major threat to judicial independence. Instances of undue pressure are rare and accidental, rather than widespread and systemic. The rule of law culture demonstrated by politicians’ respect for judicial independence makes their involvement in decision-making less problematic than it is in other EU member states lacking such a culture. Nevertheless, there is the theoretical possibility of such a threat emerging if the political commitment to and respect for judicial independence wanes.    

Corruption 

While the levels of corruption in the Netherlands are perceived as low, the Transparency International’s Corruption Perception Index shows some decline over the years. Netherlands dropped two points since 2021, earning its lowest ever score. This, according to CSOs, correlated with weak rules and poor enforcement in the field of political integrity.   

In its January 2023 report, Transparency International Netherlands (TI) highlighted lack of proper regulation preventing MPs and ministers from switching jobs between the public and private sectors. According to TI, the revolving door phenomenon between politics and the lobbying sector remains one of the most detrimental forms of corruption, eroding public trust in democratic decision-making.  The report also raised concerns about inadequate implementation of legislative footprint – the failure to give an exhaustive list of consulted stakeholders and details about meetings. 

Both the European Commission and Council of Europe’s Group of States against Corruption (GRECO) already called for introducing revolving door prohibition and cooling-off period for former government members in legislation. In its 2023 report, the Commission acknowledged the progress in the reforms , but questioned the effectiveness of the system, citing its reliance on the voluntary cooperation of former members of government to seek advice on new employment  in a management or lobby position within the private and semi-private sectors; moreover, advice was non-binding and its publication in case of non-compliance was envisaged as the sole deterrent.   

CSOs have problematised limited scope of the legislation transposing EU Whistleblower Directive - its application only to whistleblowers reporting wrongdoing in the public interest and also the lack of financial, legal and psychological aid for whistleblowers. 

Another issue CSOs identified is opaque public procurement, with a significant portion of procurement contracts not being published online. 

Media Freedom 

  • As revealed by Media Pluralism Monitor, the lack of transparency of media ownership remains an issue. This primarily stems from the absence of any national laws that require the disclosure of media organization’s ownership.  
  • According to the same source, the news media sector exhibits high market concentration, with three companies holding 74% of the radio market share and 77% in the TV sector; 94% of market share in the newspaper sector are divided among two companies. The country has an independent Media Regulatory Authority (CvdM) to keep an eye on these issues, but legal tools to avoid media concentration are largely lacking. 
  • National law does not contain specific regulations directed at SLAPPs. The Dutch government does not monitor SLAPPs. 
  • Threats and physical violence against journalists remain an issue of concern, despite governmental efforts to tackle it.  Media outlets are under attack from populist parties on the far right and far left of the political spectrum. 
  • Journalists often encounter delays or receive inaccurate or incomplete documentation in response to their requests for information. The application of the new legislation aimed at improving access to information continues to face criticism.    

Civic Space 

  • According to the European Commission, the environment for civil society organisations remains open, although Fundamental Rights Agency highlighted shortcomings regarding restrictions to the right to demonstrate. A number of stakeholders reported that there is a lack of knowledge about what the right to demonstrate entails, given that the mayors often take quick decisions to curb or ban a protest based on security considerations and that certain preventive and repressive actions undertaken by the police are disproportionate. 
  • Dutch CSOs identified the absence of comprehensive strategy to protect civic space as a significant challenge. They also reported challenges in funding activities related to human rights and rule of law, in the absence of dedicated government funding. Access to CERV funding is further restricted due to the difficulty of getting the required co-funding.  
  • CSOs also advocate for the improvement of the channels of public participation in decision-making. This call is grounded in the study revealing that nearly half of the Dutch citizens feel they lack influence over decision-making processes. CSOs argue that consultations are often seen as a “tick the box” exercise with little follow-up on what has been done with the input.  

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

This work is supported by

Stiftung Mercator