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The Netherlands operates under a civil law system whose development has been heavily influenced and shaped by Roman and French Law. This influence is evidenced by the fact that the Dutch Civil Code (Burgerlijk Wetboek) is based on Justinian’s, a former Roman Emperor, Corpus Iuris Civilis and on the Code Napoléon which was brought into the Netherlands during the period of French predominance from 1795 to 1813.
What distinguishes the Dutch legal system from most of its common and even civil law peers is its approach towards the relationship between domestic and international law which is stronger than almost anywhere else in the world, coming close to what academics would call a monistic conception of international law. The country is host to the most influential courts of international law – the International Court of Justice, the Permanent Court of Arbitration and International Criminal Courts – as well as many specialist tribunals, which emphasizes its importance in the context of international law.
In the international community, the reputation of the Netherlands with regard to the quality and fairness of its legal system is as strong as the presence of international institutions in the country. A reason for the very positive perception is the Rule of Law Index (based on factors such as absence of corruption, open government and fundamental rights) published by the World Justice Project, where the Netherlands has continuously been ranked among the top ten countries and, most recently, was ranked fifth at the beginning of 2014.
The Dutch legal systems resembles any other civil law system in the sense that there are a number of protected and regulated legal and quasi-legal professions. With regard to the regulated professions, one can refer to the professions of the advocaat (in essence the profession of the lawyer), of the notaris (notary), and of the (gerechts-) deurwaard (bailiff) who performs a variety of functions during and after the legal proceeding. Outside these legally protected professions, one can further point to the legal professions of the belastingadviseur (tax adviser), the rechtskundig adviseur (legal advisor) and octrooigemachtigde (patent lawyer). In addition, individuals can also join the civil service to become a judge, public prosecutor or other governmental worker.
Data from 2009 suggests that 36% of all law graduates go on to work for law firms, notaries or tax firms, 28% join the civil service as judges, public prosecutors and civil servants, 10% go into banking, insurance or domestic and international industry work and 4% pursue an academic career.
Remarkably, the advocaats have no monopoly on giving legal advice. It is therefore permitted for a rechtskundig adviseur to give legal advice without a formal qualification or indeed a law degree. This has lead to the commendable development of a substantial number of law centres (rechtswinkels) and law clinics, which in turn have brought down the costs for legal advice, particularly for smaller cases. Even legal representation is not in the sole competence of an advocaat. This is, for example, the case in the kantongerechten (cantonal courts), which exercise jurisdiction over a range of minor civil and criminal cases.
However, the category of the advocaat is of predominant importance for present purposes. Unlike in jurisdictions such as England and Wales or Ireland, the Netherlands draws no distinction between solicitors and barristers - in that sense, the Dutch legal profession can be said to be fused.
There are nineteen bar associations matching the number of legal constituencies in the Netherlands. Quite unusually for a legal system founded in civil law and much more akin to their common law counterparts, the Dutch bar is highly centralised. The Nederlandse Orde van Advocaten, founded in 1952, is the institution which governs the aforementioned regional bar associations. The governing rules for the legal profession are contained in a separate law, namely the Advocatenweg, which, for example, sets out the basic requirements for becoming a Dutch lawyer in Article 2.
As of 2 May 2012, there were 16,942 admitted members of the Dutch Bar, which is relatively small when measured by lawyers per capita and when compared to European neighbours or the United States. In terms of gender diversity, the Dutch Bar is again at the forefront of progressive development with the laudable percentage of around 40% of its members being female.
In addition to their membership at the Dutch Bar, many lawyers also participate in professional associations that specialise in particular areas of law, such as employment, family law or tenancy law.
The Route to Qualification
In contrast to the Netherland’s very progressive and liberal views on many legal controversies such as the legality of drugs, euthanasia or prostitution, the route to qualification represents deeply conservative characteristics. It commences with (1) the study of a three-year undergraduate law degree, which is then followed by (2) a Doctorate Degree or Master of Laws, and (3) a legal apprenticeship for another three years. Brief reference will also be made to the rules applying to non-domestic lawyers with a professional qualification in another European country who seek to qualify in the Netherlands.
For students aiming to qualify as an advocaat, it is mandatory to take on an undergraduate law degree at one of the nine law faculties that have the authority to confer a law degree/authorized to confer such a degree. Indeed the English concept of conversion courses, through which one may pursue the route to qualification without having studied law at undergraduate level, would seem very strange to a student educated in the Netherlands. The entry barriers for admission to a law faculty are low. There is no selection procedure for admission to law and the Voorbereidend wetenschappelijk oderwijs certificate is the only formal requirement to read law. Yet open admissions also mean that there tend to be high dropout and failure rates at Dutch law schools.
As to the general structure of the undergraduate law degree, the Netherlands has adopted, unlike Germany for example, the Bologna process; i.e. it has replaced the traditional doctoraal degree with a bachelor degree which must then be followed by postgraduate degree (see 2. below). Despite the changes that the Bologna process has brought, the legal education at university has retained many profoundly conservative elements.
Undergraduate courses tend to be taught in large classrooms by a professoriate with often relatively little experience of practising law (Dutch law professors are in fact permitted to practice law). Most of the modules are compulsory and teaching is focused on the doctrinal and theoretical aspects of the law. The latter point in particular, may be explained by the existence of the apprenticeship in law, which devotes much attention and teaching to practice and skills courses.
The Degree of Doctor or Master of Laws
Article 2 of the Advocatenwet, which was referred to above, states that to be eligible for the profession of the advocaat one has to have acquired a Degree of Doctor or Master in Law. The duration of a Degree of Doctor will very much depend on the academic ambition and goals of the individual pursuing it, but usually ranges somewhere between one and two years. On the contrary, the duration of Master in Law is usually fixed to one and, for some exceptional programmes, to two years.
During this stage of education, students are much less tied to compulsory modules, but can pursue their own interests and lay the foundation for a specialisation later on in their career.
In accordance with Article 3 of the Advocatenwet, a student who has successfully completed both stages of university education may then apply to be sworn in by a judge of the district courts of the legal constituency where he holds office. However, membership at the Bar is only probationary at this stage. In order to rise to a fully-fledged member of the Dutch bar, the stagiare (trainee advocate) has to complete the apprenticeship in law.
The apprenticeship in law, whose formal origins date back to the Middle Ages, consists of three core elements: (1) Work in a law office under the supervision of a patroon (an admitted lawyer); (2) mandatory classroom courses during the first nine months of the apprenticeship, and (3) a selection of education courses during the last two years of the apprenticeship which the trainee advocates may select according to their interests and aimed specialisations.
The formal training courses during the apprenticeship have undergone significant reform over the past three decades in order to enable the trainees to put their skills into practice at an earlier stage of their training. The single most significant change – the creation of the Law Firm School in 2009 – to the formal training process during the apprenticeship has come from outside the influence of the Nederlandse Orde van Advocaten. The 14 participating law firms set up a separate curriculum to the Bar’s training courses with the aim of providing a tool for more effective and practical-oriented training. The associates of those 14 firms have exclusive access to the Law Firm School, but are required to complete the ‘ordinary’ bar courses just like any other trainee advocate.
During the three-year period, the stagiare has to take a total of nine examinations which represent the equivalent to the Bar exams taken in other Member States of the European Union.
After completion of the three-year practical training, the trainee advocates are granted permission to practice without any further exams or indeed any other means of testing. Membership of the national bar association is automatic and the route of qualification has officially come to an end.
The European Directive 89/48/EEC introduced a system for the recognition of higher educational diplomas awarded on completion of professional training for a duration of at least three years in any of the Member States of the European Union. In accordance with this directive, a legal professional who has obtained qualification in another Member State of the European Union is to be granted permission to practice law in the Netherlands, after he or she has successfully taken an aptitude-test.
The shift to the Bologna process and the gradual reforms of the apprenticeship stage has certainly helped to adapt Dutch legal education to the demand of the legal profession for lawyers with an excellent theoretical background as well as the ability to effectively apply such knowledge in practice. In particular, the introduction of the Law Firm School seems to respond to the criticism that more time should be spent teaching students/trainees how to deal with complex financial transactions and the demands of the law firms’ clients.
The route to qualification is burdensome, but equally ensures that young Dutch lawyers enter their respective practices with a profound knowledge of the Dutch laws and the way the Dutch legal system operates. The intensity and duration of training is certainly one of the factors that has helped the Netherlands to gain the reputation it currently enjoys in the international community, as reflected in justice rankings such as the Rule of Law Index referred to above.
The website of the Nederlandse Orde van Advocaten (in Dutch only): https://www.advocatenorde.nl
The website of the Law Society of England and Wales also contains a brief, but useful overview of the Dutch route to qualification: http://international.lawsociety.org.uk/ip/europe/1372/practise
Written by Christian Kolb