13.7 The role of the examining judge

Since the amendment of the Dutch Civil Code in 2013, Article 2:350(4) has provided that the Enterprise Chamber should appoint an examining judge. I discuss the role of this examining judge in Chapter 9. The examining judge supervises the investigation. He can do this by giving the investigators instructions at the request of parties or of the investigators themselves. The examining judge does not have the power to issue official instructions to investigators. His supervision is specific and repressive. In my view, however, the examining judge has broad powers to issue instructions to the investigators and should not confine himself to procedural matters. For example, through active supervision if requested, an examining judge can mediate between parties and the investigators in the event of disputes, and solve these in the course of the investigation. This is more efficient at that stage than if this could only be done after the event, during the second-phase proceedings.

I take the view that the Enterprise Chamber could transfer a considerable number of tasks to the examining judge, which could have efficiency benefits. I believe that in many cases, this would already be possible under existing law, but it is advisable to regulate this so that the powers of the examining judge will not give rise to discussion.