Preliminary questions referred by lower courts
Sometimes, important questions of law do not reach the Supreme Court promptly, or even at all, despite there being a pressing societal need for a landmark decision. Consequently, lower courts (District Courts and Courts of Appeal) are permitted to refer questions to the Supreme Court, in the course of ongoing proceedings. These questions may concern the interpretation or validity of a particular legal rule. These questions are known as preliminary questions. They can be referred for a preliminary ruling in civil, criminal and tax cases. Unless otherwise stated, the following therefore applies to these three types of proceedings.
In addition, lower courts, like the Supreme Court, may refer questions for a preliminary ruling to supranational courts, such as the Court of Justice of the European Union.
When will a court refer a preliminary question to the Supreme Court?
The court can refer a preliminary question to the Supreme Court, either at a party’s request or on its own initiative. This is possible if an answer is necessary to decide the claim or application and the question is directly relevant to:
- mass claims: a large number of claims relating to the same or almost the same facts, such as (in civil cases) mass claims under the Act on Redress of Mass Damages in a Collective Action (Wet afwikkeling massaschade in collectieve actie, WAMCA) or
- the handling of numerous similar cases in which the same issue arises, for example a legal question concerning the interpretation of new legislation.
The preliminary ruling proceedings at the Supreme Court
Preliminary ruling proceedings begin with the lower court sends its judgment to the Supreme Court. The Supreme Court may decide not to handle a question. If so, it is not required to state reasons for this decision. If the Supreme Court does decide to handle the question, it allows the parties to submit written observations. The interest in a preliminary question generally extends beyond the case at hand. Therefore, it can be important for the Supreme Court to gain a comprehensive understanding of the legal and social context involved. For that reason, the Supreme Court may grant consent to third parties to also submit written observations in civil and criminal cases. In tax cases, third parties can submit written observations without the Supreme Court’s consent. These parties can include, for example, consumer organisations and trade unions.
In criminal cases, the written observations must be submitted by a lawyer, and in civil cases specifically by a cassation lawyer. In tax cases, the parties have the option of submitting their written observations themselves.
Costs of the preliminary ruling proceedings
The parties do not pay any court fees for preliminary ruling proceedings. However, the Supreme Court will determine the costs of the preliminary ruling proceedings (including lawyers’ fees and other costs) in its ruling. The resulting sum will be relatively modest and far from sufficient to cover the costs actually incurred. The parties initially bear their own costs. The court that requested the preliminary ruling will then decide which party will be ordered to pay the sum set by the Supreme Court to the other party.
Time limits and duration of preliminary ruling proceedings
The law does not prescribe any specific time limits for preliminary ruling proceedings, though the Supreme Court must ensure that the proceedings progress efficiently. In practice, preliminary ruling proceedings at the Supreme Court generally take 6 to 12 months.
What happens after the preliminary ruling has been given?
Once the Supreme Court has given its preliminary ruling, the court clerk sends a copy of it, together with the other documents from the preliminary ruling proceedings, to the court that referred the question. That court will then decide the case in light of the Supreme Court’s ruling. Before it renders judgment, the court will give the parties an opportunity to comment on the Supreme Court’s ruling.
