Effects in time of judgments in the Netherlands: prospective overruling and related techniques

Abstract

In the Netherlands, the established rule is that there is no system of precedent even though especially the judgments of the Dutch Supreme Court and the other highest courts are very authoritative and persuasive. Nevertheless, lower judges and the four highest courts are in principle not bound by previous judicial decisions. As regards court cases, the declaratory theory is formally adhered to: the judge does not create new law, but states the law as it is. As a result, court rulings are, as a general rule, relevant retrospectively. The formal adhesion to the declaratory theory is not only undermined by everyday practice, it is also mitigated by the formal recognition of what could literally be translated from Dutch legal doctrine as the ‘law forming task’ of the judiciary. Within this context, Dutch courts occasionally address the effects in time of their judgments. The present contribution discusses the various ways in which this is done in practice and pays specific attention to the technique of prospective overruling.