The Dutch Supreme Court in an ever closer European Union

The Dutch Supreme Court in an ever closer European Union

The final book of Hans Nieuwenhuis is deeply rooted in history, philosophy and literature. Yet, it offers answers to very practical questions as well: what to do with the Dutch Supreme Court?

On 26 October 2015, the final book written by Hans Nieuwenhuis (1944-2015), Professor of Private Law at Leiden University, was launched: Een steeds hechter verbond: Europa op weg naar Europa (An ever closer union, Europe in search of Europe).

Nieuwenhuis searches for the pillars on which the European community of values rests. In the first part, Enemies, he focuses on armed struggle as the father of the peoples of Europe. Some enemies came from outside. Persians demanded land and water from the Greek city states as a mark of subjection, Carthaginians stood before the gates of Rome and Huns and Moors got as far as Paris. Other enemies were chosen by the peoples of Europe. The Indian King Porus was forced to battle against Alexander the Great and his allies. The Berber kingdom of Mauretania was annexed by the Roman Empire and Hernán Cortés defeated the Aztec army of King Cuauhtemoc.

These centuries of conflict marked the continent and, according to Nieuwenhuis, should be cherished. War constitutes the cradle of European art and literature, which depicts and describes the public enemies of olden times. Through these we get to know others, and hence ourselves and our allies, as described in the second part, Allies. Indeed, literature is our window onto the outside world, our neighbours’ temples of language. The reader is an armchair traveller. With Crime and Punishment in his hand he will get to know St. Petersburg in the nineteenth century through the eyes of Raskolnikov better than with the aid of a Baedeker from that period.

Through imagination we acquire an understanding of the shared values of the European community, a spoil of war, cherished and defended by Nieuwenhuis in the third part of the book. Values constitute the foundation of the European Union, but they are also windows offering a view of an alluring prospect: an earthly paradise of freedom, equality and fraternity. The fact that the horizon is beyond reach is no reason not to continue along the path that was taken in 1957 in Rome towards ‘an ever closer union between the peoples of Europe’(p. 19).

A passionate plea for Europe, and even for a European Civil Code (p. 190) – and that in spite of the spirit of the time, which is dominated by Euroscepticism and deregulation. It is characteristic of Nieuwenhuis, who was especially interested in the follow-up questions. For example: what to do with the Dutch Supreme Court, and in particular its first chamber dealing with private law?

A European private law may need a true European Supreme Court that will be able to overrule the final judgments of the highest national civil courts. In order to prevent such a court from drowning in a tidal wave of applications, Nieuwenhuis advises the court to select cases carefully. Only if the national courts of the Member States appear to interpret the European Civil Code in different ways does it make sense to turn to this supranational institution, preferably by way of a preliminary question (Art. 267 TFEU). Nieuwenhuis has in mind here the interpretation of similar provisions concerning liability in the French and Dutch civil codes, which both stemmed from Napoleon’s Code Civil. The French Cour de Cassation understood the provision to be a form of strict liability, while the Dutch Hoge Raad understood it to be a form of fault liability. Once such differences become visible, a supranational European Supreme Court should be asked for a judgment on the correct interpretation, by way of a preliminary question. Until this is given, much remains to be done by the national supreme courts (p. 192).

At the book launch it became clear that Een steeds hechter verbond, Europa op weg naar Europa is an inspiration for Nieuwenhuis’s old-time fans as well as new readers. In the introduction he warns readers not to read the book if they are not willing to question their own aversion to the European Union, or to change their opinion that the nation state can only be saved by unlimited national sovereignty. Should readers take this warning to heart? Nieuwenhuis may have overlooked the generous gesture that he makes to his readers. So give it try.

Hans Nieuwenhuis’ last book is available at Uitgeverij Balans (in Dutch only)


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