1.1.2022

Contractual limitation of fundamental rights

The Supreme Court decision of November 22, 2019 (Hyatt-II2) dealt with the question of whether the State Regulation of Aruba (hereinafter: Streg) precludes an employee's contractual obligation to undergo alcohol and drug testing. According to the Supreme Court, the fundamental rights contained in the Streg have no direct effect. Restrictions on the exercise of these fundamental rights can therefore in principle be agreed upon by the parties and need not find a basis in a specific statutory provision, according to the Supreme Court. This article discusses the question of whether fundamental rights can be limited by contract under Dutch law. To this end, it first discusses the doctrine of the horizontal effect of fundamental rights. The Supreme Court's rulings in Hyatt-I and Hyatt-II are then discussed in more detail. Next, the contractual limitation of fundamental rights is placed within the context of Dutch legislation and case law. It concludes with a conclusion.

1. Horizontal operation of fundamental rights

1.1 Vertical operation

The primary purpose of fundamental rights is to limit government intervention with respect to people's protected freedoms vis-à-vis the government. For example, it is clear from the Constitution that restrictions on the exercise of a fundamental right are only possible if the relevant constitutional provision itself expressly provides for them. Each constitutional provision determines by whom its exercise may be limited (the so-called competence clause). A lower regulator is authorized to restrict the exercise of the fundamental right if the constitutional provision contains the term "rule" or "by or under the law. In other cases (for example, if the phrase "subject to everyone's responsibility under the law" is used), only the formal legislature can restrict the fundamental right. In the relationship between the government and citizens, fundamental rights work directly (vertical effect).

1.2 Horizontal operation

The latter does not necessarily apply to the relationship between citizens themselves (horizontal effect). Horizontal effect can be direct or indirect....

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