Published online by Cambridge University Press: 19 September 2018
In this paper I will describe the implementation of the Consumer Rights Directive, or CRD, in The Netherlands. Section 2 will deal with the provisions of the implementing act and the relation between these provisions and other provisions of consumer law. Section 3 will discuss the relationship between the rules on consumer sales and the general rules on sales contracts in The Netherlands. In section 4, I will indicate whether and to what extent Dutch law would be affected if the proposal for a Common European Sales law had been enacted. Section 5 will summarise the main findings of the paper.
IMPLEMENTATION OF DIRECTIVE 2011/83/EU IN THE NETHERLANDS
THE IMPLEMENTATION PROCEDURE
According to Article 107 of the Dutch Constitution, civil law is to be codified in the Civil Code, but the legislator is allowed to regulate specific matters, e.g. matters of consumer protection law, also in specific legislation. As Article 120 of the Constitution forbids the courts to test the constitutionality of the laws – this is seen as an exclusive task of the two Chambers of Parliament – the legislator appears to be free as to how to implement European Directives. However, the Dutch government is required to take the so-called Aanwijzingen voor de regelgeving (hereinafter referred to as Aanwijzingen) into account. Formally, these instructions for regulation are not a binding instrument, but Ministers, Secretaries of State and their staff at the Ministries are nevertheless required to follow them or to explain when and why they derogate from them. Parliament and the Council of State (that advises the government and Parliament with regard to legislation) are not bound by the Aanwijzingen, but tend to follow them where possible.
Aanwijzing 333 requires the government to incorporate Directives as much as possible in existing legislation. In The Netherlands, in accordance with Article 107 of the Constitution, civil law is largely codified in the 1992 Civil Code. As Dutch law does not have a separate Consumer Code, this implies that European consumer law directives are normally implemented in the Civil Code.
- Consumer Sales in Europe , pp. 109 - 130Publisher: IntersentiaPrint publication year: 2016