International and European Constitutional Advice
Besides all the different national constitutional advisory institutions there are many international and European ones, like the Venice Commission and—with only a mandate for fundamental rights—the EU Fundamental Rights Agency.
They will be presented hereafter.4.5.1 European Commission for Democracy through Law (Venice Commission)
Although not addressed to the Netherlands especially, much advice from the Venice Commission is relevant for the Netherlands as well, like the Commission 2011 Report on the Rule of Law,[196] and the 2016 Rule of Law checklist.[197] For the first time in history, the Venice Commission of the Council of Europe has been requested for an opinion by the Netherlands recently. This request deals with the rule of law in the Netherlands and followed the so-called ‘childcare benefits scandal’ and more concretely the motion Omtzigt c.s.,[198] adopted on 26 January 2021 in the context of the debate on the report of the POK and the reaction of the cabinet thereto. The request was lodged on 25 February by the Speaker of the Dutch House of Representatives.[199] The commission has been asked to examine the extent of legal protection of citizens under administrative law and the system of checks and balances, more specifically two questions have been put forward by the House of Representatives:
1) What laws, what implementation or what practices have contributed to the fact that power and countervailing power worked insufficiently in this case and that the citizen was crushed in the middle? What possible solutions are there to repair this and to prevent its occurrence in the future?
2) Is administrative law in the Netherlands, including the Council of State, sufficient, and what checks and balances should be added to the law or the implementation of administrative justice (and possibly adjoining branches of the law), to give citizens adequate protection, including effective access to justice and to legal aid?
Having accepted the request, a working group of the Commission visited the Netherlands in July 2021 (online) and spoke to inter alia members of parliament, civil servants of the ministries and representatives of different institutions and the civil society.
The opinion has been adopted in the October plenary session of the Venice Commission.[200] It concluded among others:In general, the Netherlands is a well-functioning state with strong democratic institutions and safeguards for the rule of law. While the shortcomings in individual rights protection uncovered in the Childcare Allowance Case are indeed serious and systemic and involve all branches of government, it appears that eventually the rule of law mechanisms in the Netherlands did work. The reports of the Ombudsman, the Parliamentary committee, and the legislative amendments show the reaction of the different mechanisms in the Dutch system. The rule of law issues revealed by the Childcare Allowance Case are taken seriously by all branches of government, which is very positive. In the interest of its citizens, the Netherlands appears to be capable and willing to address and redress its mistakes. But in this case, this reaction has taken a much longer time than it should have, and serious damage was caused to the families involved and those who attempted to expose the problem faced much resistance. The Venice Commission hopes that this opinion will contribute to the on-going process of reforms. Prevention is always better than cure.[201]
The Venice Commission makes thirteen proposals, which are ‘far-reaching and are meant as food for thought in the reflection to be carried out by the Dutch authorities.’[202]
4.5.2 EU Fundamental Rights Agency
Within the EU there are many agencies and mechanisms which deal with (aspects of) constitutional affairs, most notably fundamental rights.[203] One of them, an important one due to its broad scope, is the EU FRA. It has many tasks in the field of fundamental rights, among which delivering advice and expertise to policy makers in the EU and its Member States.[204] More specifically the FRA can e.g. ‘formulate and publish conclusions and opinions on specific thematic topics, for the Union institutions and the Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council or the Commission’.[205] Also Member states are allowed to request the EU FRA for such advice on their own initiative.
Until so far just a few Member states have done so; not so the Netherlands. The functioning of the EU FRA has been evaluated positively twice. ‘Overall, the Agency’s work is clearly highly regarded by stakeholders. The Agency should continue doing what it does’, according to the second evaluation,[206] which follows: ’In practice, the usefulness of FRA’s outputs is reflected in the fact that many duty bearers regularly use and reference FRA reports.’[207] One key element when assessing relevance is, according to the researchers, ‘that there is not always a common understanding of what the objectives of the Agency are. This lack of common understanding can lead to situations where some stakeholders have a more negative view of the Agency’s impact given that they expect its objectives to be much wider than they actually are according to its Founding Regulation.’[208]4.6
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