General legal framework

AuthorKarin de Vries
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 ar eas cove red 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 pr ovision 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 g rounds 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.30 31
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 a Constitutional
‘equality’ review.32 However, Dutch courts do have the power to revoke legislation that
violates any directly ap plicable provision of int ernational law (under Articles 93 and 94 of
the Constitution). With respect to discrimination, the Dutch courts frequently have t o
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 provi sion.
The constitutional equality clause can be enforced against private actors.33 However, since
this is an ‘open clause’ it does not sp ecify 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 an d 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.
31 According 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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT