The appeal’s judgment concerning the Dutch curfew measure calls for a holistic approach to health protection the pandemic

By Dominique Mollet, University of Groningen, s.d.mollet student.rug.nl

Two weeks ago, I wrote a blog post on the summary proceedings initiated by Viruswaarheid against the Dutch State for imposing a curfew measure on an incorrect legal basis. The preliminary relief judge decided in the morning of 16 February 2021 that the curfew measure was ‘immediately inoperable’ – (temporarily) ending the measure. I classified this judgment as ‘a victory of the rule of law’. However, the State initiated a rapid appeals procedure and in the evening of that same day, the Court of Appeal temporarily suspended the measure, due to the fact that the State’s interest of continuous measures weighed heavier than Viruswaarheid’s interest of (temporarily) putting the measure out of order.

Finally, after a long wait, the appeal’s judgment in the ‘curfew’ case has been made public on 26 February 2021: the State won the appeal’s case. Consequently, the summary judgment, declaring the curfew temporarily ineffective, has been overruled. Practically, this judgment does not have much effect (besides the legality of previously imposed fines), as the case concerned a question on the validity of the legal basis of the measure, while a new curfew measure has already been adopted. However, the underlying reasoning of the judgment may inform further policies while the Covid-19 pandemic lasts.

The appeal’s judgment, where the Court of Appeal (hereinafter the Court) made extensive statements in favour of intrusive health protection, cannot be considered in a vacuum. There are increasingly restrictive attitudes present in society: people have had enough. In this post, I aim to balance the extensive reasoning of the Court with the increasing need for relief within Dutch society. I argue that, in order to protect individuals effectively, we must look further than only protecting ourselves against the virus.[1] A holistic approach to health protection is advocated here: one in which precautions are taken against the virus, while we are also effectively guarded against the side effects arising from such precautions.

The Appeal’s Court’s reasoning

The main question in the proceedings concerned the legal basis of the curfew measure: are the present circumstances so ‘exceptional’ that the imposition of a curfew is necessary? If this was the case, then the emergency procedure followed by the State under the ‘Wet buitengewone bevoegheden burgerlijk gezag’ (‘law on exceptional competences civil authority’, hereinafter Wbbbg) was a permissible legal basis for the measure. If not, the government should have adopted the measure under a ‘normal’ legal basis, under which more democratic checks and balances are available.

Following the summary judgment, the emergency procedure under the Wbbbg can only be relied on in ‘emergency situations’ that ‘literally cannot permit any delay’. However, according to the Court, ‘emergency situations’ are not defined in the Wbbbg, nor in the legal history of the Wbbbg. Taking into account the present circumstances, the Court refuted the argument that the Wbbbg can only be relied on in situations that ‘literally cannot permit any delay’.[2] The Court, once again, adopted the analogy of breaking dikes, stating that: ‘it would be undesirable and illogical that the emergency powers [available under the Wbbbg] could only be invoked after the breaking of a dike and not by the threat of the breaking of a dike’.[3] The Court thus accepted the curfew measure even as a precautionary measure under the Wbbbg.

The Court supplemented this analysis with an extensive analysis of the present circumstances. In doing so, it was not shy to engage in a far-reaching analysis considering the severity of the pandemic. It stated that, in principle, the government may rely on the advices of the ‘Outbreak Management Team’ (hereinafter OMT), which consists of independent experts of various disciplines, [4] even if the effects of a particular measures cannot be calculated precisely due to the effects of parallel measures.[5]  Furthermore, the Court expressed that, although less Covid-19 patients are hospitalized and the hospitals are not yet overcrowded, advices of the OMT can sufficiently account for an indication of necessity for further action, allowing the government to take precautionary measures.[6]

Implications of the judgment

The judgment thus demonstrates that the Court was eager to accept the lasting severity of the pandemic. As opposed to the previous summary judgment, it interpreted the legal basis under the Wbbbg more broadly and stressed the importance of health protection. It additionally awarded the government with a wide margin of discretion on how to execute its obligation to protect health in the pandemic. In doing so, the Court appears to accept that the factual change of the circumstances in which we live have legal implications.

Although the Court alluded to matters going beyond the strictly legal question posed in the case, the assessment of the Court is in no way indicative for the further policy in the present pandemic. In the end, the Court only assessed a question related to the curfew measure and additionally made comments on the severity of the pandemic and the government’s discretion on how to use its powers in this regard. It is, however, important to look further than this judgment. By looking into recent societal manifestations, it becomes clear that the Court’s reasoning does not entirely resonate with the current societal attitude towards health protection through intrusive measures.

Practical considerations: enough is enough

As opposed to the Court’s readiness to be permissive of intrusive measures, Dutch society is exhibiting signs that it has had enough. This is increasingly visible through, for examples newspaper articles (see, for example, an article indicating that students have had enough and a report on damages incurred since the outbreak of the pandemic in the Netherlands) and individuals’ behaviour – for example, by going to the parks en masse.  Even the government is releasing a number of measures despite the high rates of infections, potentially in light of the approaching general elections in March. It is thus important to additionally award some attention to the bigger picture.

A holistic approach to health protection in the pandemic

Taking into consideration the judgment of the Court and the sentiments present within Dutch society, it is time to integrate the various problems we are faced with and adopt a ‘holistic approach’ to health protection in the pandemic. On the one hand, the societal manifestations are not leading, as Covid-19 is still wandering around choosing its victims unpredictably. On the other hand, it is impossible to adopt even more intrusive measures reflecting the Court’s judgment without taking society into consideration. The question is how the expansive judgment and the restrictive attitude in society can be harmonized.

I agree with the attitude of the Court that health protection is a legitimate and main (policy) objective in the present pandemic. This obligation to protect, however, does not preclude positive actions to restore rights and values that are curbed in by the measures. Therefore, instead of protecting health at the expense of other values and rights, these two aspects should be regarded as one harmonious problem arising from the pandemic. Precautions are still necessary, but it must not be overlooked that intrusive measures similarly cause harm upon individuals and the collective. It is important to protect the population from both of these sources of harm.

The recurring analogy of the dike can be helpful to illustrate this. If there are two holes in a dike – one threatening to ‘flood’ the country with Covid-19 and one threatening to ‘flood’ the country with other societal issues, including the negative effects on mental health – should we not treat both holes? Should positive measures not be taken to cure both problems? At this point, the judgment of the Court was valuable for curing the hole threatening to flood the country with Covid-19 infections. But if the hole allowing other problems to enter the country remains untreated, the country will eventually flood. This analogy thus emphasizes the need for a holistic approach to health protection: it should not be the case that health is protected at the expense of other rights and values, but rather that both should be treated, and balanced with positive actions. If the State decides to (legitimately) restrict a number of human rights to protect the population from an infectious disease that roams around the country, this should be combined with positive measures to heal the wounds incurred by the restrictions.

Call for harmonization

This judgment once again emphasizes the need for an integrated approach to the Covid-19 pandemic. One year after the outbreak in the Netherlands, it is no longer about health protection or protection of further rights and values. With both at risk, the positive protection of the dangers caused by the virus itself must be ensured, as well as protection from the hazards indirectly arising from the virus. Intrusive measures must be considered in light of the harms caused: when the State decides to take intrusive measures to limit the spread of the virus, it must similarly consider positive actions that can help reduce the harms arising from it. Only in that way can society shield itself effectively from Covid-19, while suffering from intrusive measures as little as possible.

[1] This has already been proclaimed by others as well, for example, by Sigrid Kaag (politician of D66) and Alexandra Beunders: ‘N Klaassen, ‘Kaag ziet gebrek aan durf bij coronabeleid: ‘We moeten leren leven met het virus, coronalens kan verblinden’ (AD, 2 March 2021) < https://www.ad.nl/politiek/kaag-ziet-gebrek-aan-durf-bij-coronabeleid-we-moeten-leren-leven-met-het-virus-coronalens-kan-verblinden~a5610847/?referrer=https%3A%2F%2Fwww.google.com%2F> accessed 1 March 2021; A Beunders, ‘Opinie: Het wordt tijd dat het OMT erkent dat het niet gelukt is om corona in de acute fase uit te roeien’ (De Volkskrant, 1 February 2021) < https://www.volkskrant.nl/columns-opinie/opinie-het-wordt-tijd-dat-het-omt-erkent-dat-het-niet-gelukt-is-om-corona-in-de-acute-fase-uit-te-roeien~b1e51f71/> accessed 28 February 2021.

[2] Hof Den Haag 26 February 2021, ECLI:NL:GHDHA:2021:285, 6.11.

[3] Translation belongs to the author, ibid, 6.11.

[4] ibid, 6.9.

[5] ibid, 6.9.

[6] ibid, 6.19.