Introduction

• Author: Karin de Vries
• Pages: 12-14

12

INTRODUCTION

The national legal system

In the Netherlands, central Government is the only level of government that passes anti-

discrimination or equal treatment legislation. The principles of equality and non-

discrimination are covered by various areas of the law. Of importance are the Constitution,

public and private employment law, criminal law and specific statutory equal treatment

acts. Moreover, since the Dutch constitutional system adheres to a ‘monist theory’ of

international law, international equality guarantees are automatically applicable in the

national legal system and take precedence over national legislation, provided that they are

sufficiently clear and precise to be justiciable in concrete cases (cf. Articles 93 and 94of

the Constitution). Private employment contracts are regulated by Book 7 of the Civil Code

(Burgerlijk Wetboek), which contains equal treatment provisions, and by specific statutory

equal treatment acts. Furthermore, regulation may occur through Collective Labour

Agreements at the level of the sector or individual employer. For civil servants, a law was

adopted to make their employment subject to the same rules as private sector

employment, with the exception of certain specific categories including judges and military

personnel.15 The main equality body is the Netherlands Institute for Human Rights (NIHR)

(College voor deRechten van de Mens), which has a section that deals with complaints

about unequal treatment.

List of main legislation transposing and implementing the directives

-Article 1 of the Constitution (Grondwet) enshrines a constitutional equality and non-

discrimination guarantee.

-International non-discrimination provisions (e.g. Article 26 of the International

Covenant on Civil and Political Rights (ICCPR) and Article 14 of the European

Convention on Human Rights (ECHR)) can be directly applied in court proceedings.

Sometimes provisions from the UN International Convention on the Elimination of All

Forms of Racial Discrimination (ICERD), the UN Convention on the Rights of People

with Disabilities (CRPD) or the UN Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) are also called upon before Dutch courts.

The Netherlands ratified the CRPD on 14 June 2016.

-EU Treaty provisions and directives can be directly applied under the normal

conditions for applicability of EU Law in the Member States.

-The Criminal Code (Wetboek van Strafrecht) includes specific provisions criminalising

discriminatory speech and publications (Articles 137d-137f) and discriminatory acts

in the performance of an individual’s job or enterprise (Articles 137g and 429quater).

Discrimination is defined in Article 90quater, in line with Article 1 of the UN ICERD

and therefore different from the definition in the directives. In addition, Article 137c

forbids insulting groups of people because of their race, religion/belief or homo-

/heterosexual orientation.16

-The Civil Code (Burgerlijk Wetboek) includes specific articles prohibiting sex

discrimination and discrimination in relation to the duration of employment contracts

and whether they are permanentor fixed-term contracts (Articles 7:646-7:649).

Employers are also liable if they fail to guarantee safe working conditions. This

includes an environment free from discrimination and (sexual) harassment (Article

7:658).

15 Act on the regularisation of the legal status of civil servants (Wet normalisering rechtspositie ambtenaren),

Staatsblad 2017, 123. The Act will enter into force on 1 January 2020. The exempted categories are listed in

Article 3 Civil Servants Act (Ambtenarenwet 2017).

16 The term ‘homosexual or heterosexual orientation’ was used instead of the more ordinary term ‘sexual

orientation’ to make clear that it does not include paedophile orientation. To avoid confusion in this report

‘sexual orientation’ is used throughout unless otherwise indicated, as this is what the Dutch law intends to

cover.