Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The claimant was an organization representing non-essential stores in the Netherlands. The Government of the Netherlands closed non-essential stores to prevent the spread of COVID-19.
The claimant asked the District Court of the Hague to annul the governmental measures closing non-essential stores. The claimant argued that closing non-essential stores could not stop or reduce the spread of the coronavirus and, consequently, the requirements of proportionality and subsidiarity were not fulfilled. The District Court of The Hague rejected the arguments of the claimant. The Court considered that the Government fulfilled the requirements of subsidiarity and proportionality when the decision was made to close non-essential stores. Consequently, the Court did not annul the measures closing non-essential stores.
Facts of the case
The claimant was an organization which represented non-essential stores. Non-essential stores were closed on December 14, 2020 as part of a complete lock-down due to a high number of COVID-19 infections. Medical experts advised the Government to close non-essential stores because they considered recreational shopping to be an epidemiological risk. In February 2021, the Government made ‘click and collect’ possible for non-essential stores. In March 2021, the Government also made ‘shopping on appointment’ possible.
The claimant asked the District Court to fully re open non-essential stores based on three arguments. Firstly, the claimant argued that closing non-essential stores was not beneficial to reducing the spread of COVID-19. Secondly, the claimant argued that the closure was disproportional, especially because of serious financial losses. Lastly, the claimant stated that the Government did not fulfill the requirement of subsidiarity by failing to research whether less intrusive measures were possible.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The District Court explained that the Government had a wide margin of discretion when implementing measures to stop the spread of COVID-19. Consequently, the Court could only assess whether the decision of the Government to implement the measures was unreasonable. The District Court assessed all arguments made by the claimant and rejected these arguments.
Firstly, the claimant argued that closing non-essential stores could not reduce the spread of COVID-19. The Court, however, concluded that the claimant did not sufficiently prove this argument.
Secondly, the claimant argued that the closure was not proportional. The Court assessed different opinions from the Dutch Outbreak Management Team (OMT), a team of medical experts advising the Government on the developments of COVID-19 in the Netherlands. The OMT repeatedly explained the necessity of closing stores to prevent large numbers of people travelling to city centers. Furthermore, the OMT argued that easing COVID measures was not possible because the number of infections was too high and the Dutch health system was under great pressure. Therefore, the Court rejected the second argument of the claimant because the Government made the decision to close non-essential stores based on sufficient expert opinion and the closure was deemed necessary.
Lastly, the claimant argued that the Government had not considered whether less intrusive measures were possible. However, the Court concluded that the Government did assess whether less intrusive measures were possible and, consequently, made ‘click and collect’ and ‘shopping on appointment’ possible. The District Court thus concluded that the decision to close non-essential stores was reasonable and did not annul the governmental measures.
Conclusions of the deciding body
The District Court of the Hague rejected the arguments of the claimant and did not annul the governmental measures which closed non-essential stores. The claims were not upheld.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The District Court considered that the freedom to conduct a business is not absolute. Consequently, restrictions were possible under three circumstances. Firstly, a restriction must be shown to be necessary. Secondly, a restriction must be suitable to achieve the intended aim. Lastly, the requirements of proportionality and subsidiarity must be fulfilled. The District Court concluded that all three requirements were met and thus the freedom to conduct a business was not breached.