General legal framework

• Author: Karin de Vries
• Pages: 15-15

15

1GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

In the Dutch constitution, Article 1 covers non-discrimination:

‘All persons in the Netherlands shall be treated equally in equal circumstances.

Discrimination on the grounds of religion, belief, political opinion, race, sex or on any

other ground shall be prohibited.’

This provision applies to all areas covered by the directives. Its material scope is wider

than those of the directives, as there are no boundaries to the personal and material scope

of this article, which means that the Constitutional provision applies to everybody in the

country and to all fields of social and economic life.The term ‘any other ground’ is

understood to include age, disability and sexual orientation: these grounds are expressly

protected in the statutory equal treatment legislation which implements the constitutional

non-discrimination clause. A proposal is pending in Parliament to explicitly mention the

grounds ‘homosexual or heterosexual orientation’ and ‘disability’ in Article 1 of the

Constitution.3031

The constitutional anti-discrimination provision is directly applicable in vertical relations.

There is a limitation to this: formal statutory Acts (adopted by the Government in co-

operation with Parliament) may not, according to Article 120 of the Constitution, be

subjected to Constitutional review by the courts and thus also not to aConstitutional

‘equality’ review.32However, Dutch courts do have the power to revoke legislation that

violates any directly applicable provision of international law (under Articles 93 and 94 of

the Constitution). With respect to discrimination, the Dutch courts frequently have to

consider whether a particular piece of legislation violates Article 14 of the European

Convention on Human Rights, Article 26 of the International Covenant on Civil and Political

Rights, or any other international or European non-discrimination provision.

The constitutional equality clause can be enforced against private actors.33However, since

this is an ‘open clause’ it does not specify what the equal treatment or non-discrimination

norm entails in concrete situations and how this norm should be weighed against other

constitutional rights (e.g. freedom of speech/opinion or freedom of belief/religion). In order

to ensure the applicability of the equality principle in horizontal relations, the Constitutional

guarantee has been incorporated into criminal law provisions and specific statutory equal

treatment legislation (ADA, DDA, GETA and ETA).

30 Tweede Kamer 2009/2010, 32 411, nr. 2. The proposal was retabled in 2019 after a period of inactivity.

Amendments to the Constitution are subject to an enhanced legislative procedure, including two readings

and the requirement for a two-thirds majority.

31According to the explanatory memorandum, the proposal uses the term ‘homosexual or heterosexual

orientation’ instead of ‘sexual orientation’ to comply with the terminology of the GETA and avoid problems of

interpretation (Tweede Kamer 2009/2010, 32 411, nr. 3, p. 15).

32 Over time several bills have been proposed to introduce Constitutional review into the Constitution, but so

far none have been adopted.

33 E.g. Supreme Court 8 October 2004, NJ 2005/117 (Van Pelt/Martinair and KLM / Vereniging van

Verkeersvliegers), ECLI:NL:HR:2004:AP0425.