3.2.5.1 The nullity of a juridical act (Article 3:40 BW)

71. The Italian courts paid considerable attention to the validity of the disputed clause in the bando di concorso and the question whether or not it was null or voidable.1 In Dutch law, juridicalacts can be null and void (van rechtswege nietig) or voidable (vernietigbaar). In the Netherlands, employers in both the public and the private sector publish vacancies or informal calls for curricula vitae online and in newspapers or sector-related magazines. Normally, such publications are not considered to be juridical acts, because as such they lack an intended legal consequence (beoogd rechtsgevolg). They solely constitute an invitation for persons to apply for the particular position.2 In case a requirement in a normal vacancy is contrary to the law, the interested party can bring a claim for, for example, compensation for damages suffered or a prohibition on the basis of Article 6:162BW (§3.2.5.4). Although under Dutch law a requirement in a job vacancy that infringes Article 45 TFEU would normally thus not be null because it is not a juridical act, the question still arises whether under Dutch law juridical acts that are in conflict with Article 45 TFEU are null and void.

72. In a nutshell, immediate nullity is the automatic and retroactive invalidity of a juridical act. Nullity on the basis of Article 3:40BW can be invoked by anybody. Differently, annulment of a juridical act in principle requires a request for annulment by the interested party based on a legislative ground for annulment.3 Nullity, either immediate nullity or nullity by annulment, have the same legal consequence: the act is deemed to have never existed.4

73. Due to its remarkable structure and phrasing, Article 3:40BW has been subject to debate for decades.5 I will focus on how, in the prevailing view, the provision would apply to juridical acts that constitute an infringement of Article 45 TFEU in a horizontal legal relationship. First and foremost it is noted that, since Article 45 TFEU has direct horizontal effect, this provision is a source of – supranational – mandatory law.6 Following the common approach of Article 3:40 BW, the next step would concern the question whether the validity of a juridical act infringing Article 45 TFEU would be assessed on the basis of paragraph 2. If paragraph 2 does not apply, the validity of the juridical act can be assessed on the basis paragraph 1 of Article 3:40 BW.

74. On the basis of paragraph 2, juridical acts which have come about contrary to mandatory law are null and void.7 Article 3:40(2) BW applies only when mandatory law explicitly prohibits the coming into existence or establishment of a specific juridical act8; not to juridical acts that by their content or necessary implication are in conflict with an imperative statutory provision (mandatory law). Paragraph 2 thus forces one to verify whether the coming into existence of the specific juridical act is explicitly prohibited by mandatory law. Although Article 45 TFEU prohibits discrimination on account of nationality and restrictions on the free movement of workers, this provision – or any other provision of mandatory law – does not explicitly prohibit the coming about of certain juridical acts that contain clauses or obligations the performance of which would infringe Article 45 TFEU. Therefore, paragraph 2 does not apply.

75. Paragraph 1 stipulates that juridical acts which as regards their content or necessary implication are contrary to goods morals9 or public policy10 are null and void. A juridical act is contrary to good morals or public policy when it is incompatible with fundamental principles that concern essential societal interests and constitute the foundations of the ethical, legal and economical values upon which our society builds.11 A classic example is the purchase agreement concerning a Japanese cook’s knife when both parties to the agreement know that this knife is not meant to cut Black Angus beef, but to slit the throat of the neighbour’s dog that has been disturbing the buyer’s night rest for months. Other clear examples would be contract killing, kickback agreements, slavery agreements or agreements in respect of the trafficking and trade of drugs or human organs.

76. The requirement in a juridical act to possess a specific language certificate that can be obtained in only one province is not, as such, contrary to good morals or public policy. The content and necessary implication of this requirement are that persons are indirectly discriminated against on account of nationality and that the clause impedes the free movement of persons. Although the right to non-discrimination and the right to free movement of persons are fundamental rights of Union law, classifying them as norms of good morals or public policy would be too far-reaching in my opinion. As a matter of fact, according to Article 45(3) TFEU, a restriction of Article 45(1) TFEU can be justified by grounds of public policy, which may indicate that Article 45 TFEU itself is not of public policy. Further, to date the Court of Justice has not stated that these provisions are of public policy or that they should be equated with them.12 Should this change at some point, Article 3:40(1) BW should be interpreted in harmony with any such decision. In sum, an infringement of Article 45 TFEU is not as such in conflict with good morals or public policy.

77. Also juridical acts that are incompatible with less fundamental principles can be null and void on the basis of Article 3:40 (1) BW. That is, juridical acts that are by their content or necessary implication in conflict with mandatory law can be in conflict with good morals or public policy.13 This is however not per se the case.14 In Esmilo/Mediq the Hoge Raad developed viewpoints to assess whether juridical acts in conflict with mandatory law constitute a juridical act contrary to public policy.15 A national court must assess which interests are (supposed to be) protected by the legislative provision infringed; whether the infringement of the legislative provision resulted in the impediment of fundamental principles16; whether the parties were aware of the fact that the legislative provision was infringed, and; whether the provision infringed provides for a sanction for the particular infringement. Thus far, there have been no cases in which the Hoge Raad – or any lower court – had to decide on whether a juridical act, that by its content or necessary implication is in conflict with one of the four freedoms, is a juridical act contrary to public policy and, therefore, null and void.

78. In cases in which a juridical act infringes Article 45 TFEU, three of the four viewpoints indicate the immediate nullity of such an act beforehand. Firstly, Article 45 TFEU aims to protect and stimulate the functioning of the internal market as well as to abandon discriminatory practices based on nationality. The damage suffered falls within the scope of these interests. This indicates nullity on the basis of Article 3:40(1) BW. Secondly, the infringement of the provision has led to an impediment of the fundamental principle of non-discrimination. Also this implies nullity on the basis of Article 3:40(1) BW. Thirdly, Article 45 TFEU itself does not provide for a sanction for the infringement of this provision by a private party.17 Hence national law should be applied to sanction any infringement. The direct horizontal effect of Article 45 TFEU is an argument to hold that immediate nullity of the juridical act in question is an effective and proportionate remedy, especially in case there are no other remedies available with the same or similar legal effects.18 Nullity on the basis of Article 3:40(1) BW is certainly the strongest remedy, compared to voidability – relative and limited in its scope of applicability – or incidental inapplicability on the basis of the restrictive effect of reasonableness and fairness entrenched in Article 6:2(2) BW and 6:248(2) BW.19 Hence, also this viewpoint implies nullity on the basis of Article 3:40(1) BW.20

79. Another perspective, promoted by a number of Dutch scholars, would be to assess all juridical acts that are in conflict with mandatory law – either the juridical act as such or its content or necessary implication – on the basis of paragraph 2 of Article 3:40BW.21 Should this path be taken, it would be most plausible to arrive at the automatic nullity of the juridical act, and not to the exception of annulment22, since Article 45 TFEU is not a provision that solely and specifically protects workers against discriminatory practices, but particularly aims at improving the functioning of the internal market as such.23 In my opinion Article 45 TFEU on the free movement of workers cannot as such be equated to for instance the provisions on consumer protection or the protection of workers in labour law. The character and objective of Article 45 TFEU are more comprehensive in comparison to provisions that specifically concern consumer protection or worker protection. Further, since Article 45 TFEU has direct horizontal effect, it clearly purports to invalidate juridical acts in conflict therewith, whilst it does not regulate the consequences of an infringement itself. Consequently, paragraph 3 of Article 3:40 BW would not apply.

80. When a Dutch court assesses the validity of a juridical act on the basis of either paragraph 1 or paragraph 2 of Article 3:40BW, the court applies an ex tunc assessment.24 In relation to Angonese it is interesting in this context to remark that Article 45 TFEU was effective on the date upon which the bando di concorso was published. At that point in time it had not been confirmed yet that Article 45 TFEU had direct horizontal effect. In its Angonese judgment the Court of Justice did not create a new rule; the Court just interpreted Article 45 TFEU and clarified that this provision has direct horizontal effect. Rulings of the Court of Justice have ex tunc effect and thus the interpretation applies to legal relationships established before the date upon which the ruling was delivered.25 Therefore, the interpretation given to Union law by the Court of Justice is relevant for the ex tunc assessment of the validity of juridical acts established before the date of the judgment. The fact that at the time that the juridical act came about parties were not yet aware of the direct horizontal effect of Article 45 TFEU cannot alter that conclusion.26