Fifth Colloquium (Paris, fall 2012) Questionnaire (Rev. 1) NETHERLANDS. I. Appointment of judges to the Supreme Court

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1 Fifth Colloquium (Paris, fall 2012) Questionnaire (Rev. 1) NETHERLANDS I. Appointment of judges to the Supreme Court 1) Are open positions to judgeships at the Supreme Court publicized? Yes, but not for every single vacancy. Once or twice a year an advertisement is placed in a national newspaper and in one or more judicial reviews. In this advertisement we do not only ask people who see themselves fit to become a Supreme Court justice to respond but we also ask the readers to mention potential candidates. 2) Who can apply to judgeships at the Supreme Court (is there a ratio for candidates not already members of the judiciary)? Candidates must have Dutch nationality. A candidate has to have a university degree in law and once nominated he is not allowed to practice as an attorney at law or as a public notary and he is not allowed to be a member of parliament. There is no ratio for candidates not already members of the judiciary. 3) How is conducted the selection of the Applicants to Supreme Court positions: which body is practically in charge of drawing up the list of candidates? What are the criteria for nomination on the list of candidates (age, seniority, qualifications, etc.)? Are those criteria publicized? Is there a hearing of the selected candidates? By whom? 4) Is the Supreme Court (through a specific body of the Supreme Court or in conjunction with other bodies?), and especially its President, involved in the selection process of applicants? And in the appointment process of those who are selected (proposal, recommendation, requirement of approval, etc.)? 5) Which State bodies (other than Councils for the Judiciary and Supreme Courts) are involved in the selection and appointment process of Supreme Court judges? 6) Is there transparency of the selection process (number of applicants, selection criteria )? And of the appointment process (publicity of the list candidates, public hearing, etc.)? 7) Who reaches the decision to appoint among the selected candidates? On which criteria (merit, representativeness of the society, professional experience, etc.) 9) Who carries out the appointment (Head of State )? May the appointing authority refuse to appoint?

2 The questions above can be answered as follows. Procedure for recruiting the judges The legal basis for the appointment and selection procedure of judges for the Supreme Court is found in article 118 of the Dutch Constitution (Grondwet) and article 5c-6 Wet rechtspositie rechterlijke ambtenaren (Act concerning the legal status of the judiciary). Both these articles merely stipulate that judges of the Supreme Court are being appointed by Royal Decree on proposal of the Lower House of parliament and that a nominee can be chosen from a list of six recommended candidates, to be provided by the Supreme Court after consultation of its Procurator-general. How the Lower House makes its choice from this list of six recommended candidates and how the Supreme Court draws up this list, is not laid down. Over the years the Supreme Court and the Lower House have developed the following practice. When a seat is vacant, the Supreme Court notifies the Lower House, providing a list of six recommended candidates. Number one mentioned on this list is the candidate the Supreme Court wishes to be appointed, according to its own needs and wishes. The Supreme Court also explains why the candidate on top of the list and the candidate(s) who appear on the list for the first time is/are according to the opinion of the Supreme Court (an) eligible candidate(s). Extensive curricula vitae of the candidates accompany the list of recommendation. The same notification and documents are being forwarded to the special commission for judicial matters of the Lower House. The President and the Procurator general of the Supreme Court are then being invited by the special committee for judicial matters of the Lower House for a hearing, in the course of which they explain the reasons of the Supreme Court to mention a certain candidate as number one on the list and to mention the new candidate(s). The candidate on top of the list is almost always a candidate that has been mentioned before on the list of recommended candidates for earlier vacancies, but in a lower position. The special commission of the Lower House interviews in separate sessions the candidates who are new on the list and then draws up a binding list of 3 nominees, which is being sent to the Lower House. On this binding list of 3 candidates the number one is usually the candidate preferred by the Supreme Court itself to fill the vacancy. The Lower House sends this binding list of 3 nominees to the Minister of Justice. After consulting the Council of Ministers (the Netherlands government) a candidate from this list of 3 nominees is being chosen, usually the number one on this list (who usually also was on top of the list of candidates recommended by the Supreme Court). A royal decree is then being prepared for the official nomination. In general the remaining five candidates on the list provided by the Supreme Court will be mentioned again on the next list, when a new vacancy is due. Selection of possible candidates by the Supreme Court for future vacancies. The general assembly of the Supreme Court has quite recently reformed the internal selection procedure. What follows is based on this revision. In order to be able to select candidates for a future vacancy the Supreme Court has an internal selection committee, charged with assembling names of possible future candidates for the short and for the long term. This committee consists of 2 justices from each of the three chambers and an advocate-general from each division. The registrar of the Supreme Court acts as secretary to the committee. This committee maintains two lists (A and B) of possible candidates. Potential candidates can be mentioned by the sitting members of the Supreme Court or the members of the parquet of the Procurator-general or can be brought to the attention of the selection committee as a result of the advertisement mentioned above. The selection committee decides which potential

3 candidates will be placed on the B-list. The committee can interview possible candidates for the B-list. From the B-list candidates will be selected by the selection committee (in close consultation with the chamber of the Supreme Court in which a vacancy occurs and the parquet of the Procurator-general) with whom an exploratory talk will be held in order to decide if the candidate can be placed on the A-list. This exploratory talk will be held with two members of the chamber of the Supreme Court for which the person mentioned is to be considered as a potential candidate and one member of the relevant section of parquet of the Procurator-general, all of whom are not members of the selection committee. In case of doubt a second exploratory talk with the potential candidate for the A-list can be held by two other members of the relevant chamber of the Supreme Court and another member of the bureau of the Procurator-general. The results of the exploratory talks will be communicated to the Supreme Court and to the parquet of the Procurator-general. The Supreme Court and the parquet of the Procuratorgeneral report to the selection committee. The selection committee decides to place a candidate on the A-list or to remove a candidate from the B-list. As soon as a vacancy occurs the president of the Supreme Court will inform the selection committee at what term this vacancy has to be filled, how many positions have to be filled, in which chamber(s) and to what specific profile(s) the candidate(s) should answer. The selection committee will in the light of this information select the best candidates from the A- list. With these candidates selection-interviews will be held by two subcommittees. In one of these subcommittees three members of the selection committee have a seat. The other committee is composed of two members of the chamber in which the vacancy occurs and one member of another chamber of the Supreme Court. Both committees report to the selection committee, which will inform the chamber in which the vacancy occurs about the outcome of the selection-interviews and propose a list of recommendation to the President of the Supreme Court. Next the President of the Supreme Court will propose a list of recommendation to the Presidium of the Supreme Court (i.e. the President, the 6 vice-presidents, the Procurator-general and the Deputy Procurator-general). After the consultation and authorization of the Presidium of the list of recommendation the President will consult the other two chambers of the Supreme Court and the parquet of the Procurator-general. Then the President of the Supreme Court will finalize the list of recommendation which is sent to the Lower House. Criteria used to select the candidates Selection is mainly determined on legal qualities and expertise: a creative and highly developed legal mind is required. Integrity is of the utmost importance. A candidate s political preference is of no consideration as the nomination is non-political and political preference is seen as a purely private matter (as e.g. religion). The Supreme Court strives for diversity in several respects. Firstly there is a need for generalists and specialists. Generalists play an important role with regard to the task of guaranteeing the unity of the law. We need specialists for some important domains like private international law, customs law etc. Secondly we need to have in our midst people with various experiences: career judges, private lawyers, tax consultants and tax officials, prosecutors, law professors. Thirdly there has to be an influx of women and men. The institutions/bodies involved in the selection and the appointment of the judges The selection of candidates is done by members of the Supreme Court itself. The Supreme Court, the Lower House of parliament and the government are involved in the appointment of a judge.

4 8) Can the selection of an Applicant at the Supreme Court be appealed? By whom? To whom? And regarding the decision to appoint the selected candidate? The selection can not be appealed. 10) Are you satisfied of the prevailing conditions in your country? Which modifications would you suggest? We are satisfied with the current situation, especially after the recent reform of the internal selection procedure.

5 II. - Appointment of judges to the Court of Justice of the European Union and to the European Court of Human Rights 1) Given the requirements of the Conventions (Article 19 of the Treaty on European Union Article 21 of the European Convention on Human Rights and paragraph 4 of Resolution 1646 (2009)), what are the other qualifications for the candidates (independence and impartiality, professional experience, legal training, linguistic abilities, ability to work in an international environment)? Candidates of course have to meet the criteria that are given in the relevant Treaty (Article 21 Convention for the Protection of Human Rights and Fundamental Freedoms and Article The Treaty on the Functioning of the European Union). Apart from that in general candidates need to have relevant international experience and experience as a judge, as well as thorough knowledge of the relevant field of law, the ability to express oneself effectively in writing and verbally in the French and/or in the English language and candidates have to be able to take into consideration the differences in judicial culture and tradition between the member states of the European Union and the Council of Europe. 2) How is selection of the candidates conducted on national level? An advertisement is placed in several relevant judicial reviews. A Committee of Recommendation will lay down a recommendation in which three possible candidates are mentioned in alphabetical order. The reasoned recommendation holds a description of the abilities of the candidates.. Based on this recommendation the Council of Ministers (the Netherlands government) can choose a candidate. The Council of Ministers can depart from the recommendation but when is does the Council of Ministers is obliged to give it s reasons explicitly. In the Committee of Recommendation the President of the Supreme Court or the Procurator General of the Supreme Court (when it concerns a post of advocate general at the EU-court), the Vice-President of the Council of State or the Chairman of the Administrative Jurisdiction Department of the Council of State have a seat as well as someone with thorough knowledge of European law and personal experience within the environment of which the relevant court is a part. The Council of Ministers will send its recommendation to the relevant international body. 3) What is the transparency of the selection / appointment process? In March 2000 the procedure was laid down in an agreement between the Minister of Justice and the Minister of Foreign Affairs. Apart from the advertisement and the recommendation by the Council of Ministers the (results of the) several steps of the selection procedure are not made public. 4) What is and should be the role of the Governments? Should a non-government supported application be taken into consideration? A non-government supported application will diminish the democratic legitimacy of the recommended candidates. In the current Dutch practice a good balance is struck between the influence of the several involved (judicial and executive) branches of government.

6 5) Are the Presidents of the Supreme Courts consulted or otherwise involved? Yes, see the answer to question 2 above. 6) Is the European Courts or their Members involved in the process (officially / unofficially)? No, the agreement on the procedure of selection and recommendation mentioned above explicitly states that the member of the European Court whose position has to be filled will not be a member of the (national) Committee of Recommendation. 7) How could the Network be of help to the Committee set up under Article 255 of the Lisbon Treaty for nominations at the Court of Justice of the European Union (approval of the proposals)? The Network could function as a contact point when the panel mentioned in Article 255 has to be composed and members of the national supreme courts have to be selected. Another possibility would be to propose that the president of the Network or the president and the vice-presidents of the Network (depending on how many seats in the panel have to be filled by members of the national supreme courts) will serve in the panel ex officio.