February 16, 2021, was a special day for all lawyers in the Netherlands: the court of The Hague ended the recently introduced curfew. The action group Viruswaarheid filed a lawsuit against the Dutch State for the introduction of the curfew and the court declared the curfew unlawful. Shortly afterward, the State of the Netherlands filed an appeal against this decision. That same day this resulted in an urgent appeal to the Court of Appeal in The Hague.
On January 21, 2021, an emergency debate took place in the so called Tweede Kamer, which is similar to the House of Commons in the United Kingdom and the House of Representatives in the United States. A majority of the Tweede Kamer has agreed to the introduction of a temporary curfew. Since Tuesday, February 23, it has been announced that the curfew will be extended by another 3 weeks until March 15. Since the introduction of curfew on January 23, around 33,000 fines have been handed out.1 The amount of the fine is 95 euros and is therefore not included in the judicial documentation.
But which grounds exactly led to the decision of the Court of The Hague? First of all, it is important to consider the legal basis of the curfew and how it was initially achieved. Minister Grapperhaus of the Ministry of Justice & Security instituted the Temporary regulation on national curfew covid-19 based on art. 8 paragraphs 1 and 3 Wet Buitengewone Bevoegdheden Burgerlijk Gezag (hereafter: Wbbbg) – in English translated to the Extraordinary Powers of Civil Authority Act. The main goal of the introduction of the curfew was to combat the pandemic. The Explanatory Memorandum shows that the justification of the curfew exists of three goals: the first goal was to keep an acceptable number of severe Covid-patients, so that hospitals could deliver high-quality care to these patients and to other regular patients. The second goal was to protect vulnerable people in society and last but not least goal is to prevent the spread of the virus and keep it transparant.2 Also the reason why the government has taken the curfew into account as a covid measure is because the government is seeking advice from the Outbreak Team Management (hereafter: OMT). The OMT has the important task to advice the government on the covid measures to be taken. The OMT has recommended both setting and extending the curfew. But the important question is: what did the Dutch State do wrong to lose this trial?
‘However, the court took the position that there must be “extraordinary circumstances that make urgent action necessary.”‘
Action group Viruswaarheid argued in the proceedings before the Court of The Hague that the government is acting unlawfully with the introduction of the curfew because the legal basis of the regulation is incorrect. According to Viruswaarheid, this should not have been based on the Wbbbg. The Wbbbg may only be used as a legal basis for certain measures in a state of emergency. What exactly is such a state of emergency? The official dictionary of the Dutch language Van Dale says the following about this: “state of dire need: a declaration of a state of emergency makes it official that the country is in great danger and announces measures to avert that danger.”3 About the state of emergency, Mr. Jan-Peter Loof, senior lecturer in Constitutional Law and Human Rights, said: there is an actual emergency situation in The Netherlands, but not(yet) an emergency.4 In the Netherlands, the state of emergency has not officially been declared by the government. But according to r.o. 4.2 of the judgment of the court of The Hague, an officially declaration is not necessary for the application of the Wbbbg, as follows from the Coördinatiewet uitzonderingstoetstanden (Coordination Act on Exceptional Situations).5
However, the court took the position that there must be “extraordinary circumstances that make urgent action necessary.” In r.o. 4.7, the court motivates why the temporary arrangement should not have been based on the Wbbbg. According to the court, The Dutch State has insufficiently substantiated why there is super urgency. This means that a regular urgent process cannot be awaited, which is a requirement for the appliance of the Wbbbg. The court then states that the plan to introduce a curfew has been on the table for some time but has not been implemented before. As a result, the court thinks that there could be no super urgency for the introduction of a curfew in the current circumstances. Besides, the court stated that the fact that there was time for an urgent debate in the House of Representatives indicates that there was no such emergency situation as referred to in the Wbbbg.
The end of the story: a special week for many lawyers!
In conclusion, the court of The Hague upheld the claim of Viruswaarheid and declared the judgment provisionally enforceable. This meant that the court’s decision must be complied with immediately and the curfew must be suspended. Time has taught us that that same day the State submitted an urgent appeal to the Court of Appeal in The Hague. In this appeal, the court has temporarily suspended the court’s decision. In the meantime, the government has found a new legal basis for the curfew, namely through the Wet Publieke Gezondheid (Public Health Act).6 But time has taught us that the Court of Appeal didn’t upheld the decision of the Court of the Hague. The consequences of the fines that have already been handed out will be the same as they are now. But, we saw an interesting judiciary control over the state his actions. All in all, the third week of February, 2021, was a very inspiring and special week for many lawyers in The Netherlands, who probably – just like me – were glued to the live stream during a few days.
‘In the meantime, the government has found a new legal basis for the curfew, namely through the Wet Publieke Gezondheid (Public Health Act).’
1. AD, ‘Avondklok verlengd tot 15 maart, de eerste dag van de verkiezingen’, 23th of February 2021, on: https://www.ad.nl/binnenland/avondklok-verlengd-tot-15-maart-de-eerste-dag-van-de-verkiezingen~a945f353/.
2. Kamerstukken II 2020/21, 35732, 3, p. 1-4.
3. Van Dale groot woordenboek van de Nederlandse taal, Utrecht: Van Dale 2015 (online geraadpleegd).
4. De Nederlandse Grondwet, dhr. J.P. Loof, ‘Coronacrisis: noodsituatie maar (nog) geen noodtoestand’, 30th of March 2020, on: https://www.denederlandsegrondwet.nl/id/vl7ah0bz39wh/nieuws/coronacrisis_noodsituatie_maar_nog_geen
5. Rechtbank Den Haag 16th February 2021, ECLI:NL:RBDHA:2021:1100.
6. Rijksoverheid, ‘Avondklok heeft andere wettelijke verankering’, 22th of February 2021, on: https://www.rijksoverheid.nl/actueel/nieuws/2021/02/22/avondklok-heeft-andere-wettelijke-verankering.