In a Hague courtroom, a lawyer urged appeals judges to overturn a ban on the measure that was imposed earlier this week by a judge in an injunction filed by a group that opposes the national lockdown.
At the same time, senators in the nearby parliament building were debating and expected to vote on hastily prepared legislation underpinning the 9 p.m.-4:30 a.m. stay-at-home order that would make the outcome of the courtroom appeal largely irrelevant.
A clear majority of lawmakers in the lower house of parliament, including a number of opposition parties, approved the legislation Thursday. If the same parties vote for the measure in the senate, the bill will be approved.
The curfew sparked rioting when it was introduced last month but is broadly supported and adhered to.
In a summary judgment Tuesday, a judge in The Hague rejected the legal basis for the curfew, saying that the situation was not urgent enough for the government to use a law allowing it to act swiftly in acute emergencies such as a major breach of the dikes that protect the low-lying Netherlands from high water.
In court Friday, government lawyer Reimer Veldhuis used the dikes as a metaphor for the coronavirus pandemic that has caused more than 15,000 confirmed deaths in the country.
“Just before the introduction of the curfew, the water was splashing against the dike,” he told the appeals panel.
He said the government's scientific advisors warned it of a “third wave bearing down on the Netherlands” swelled by the more transmissible variant of the virus first discovered in Britain.
“In those circumstances, the Cabinet believed it had to take emergency measures in the form of a curfew,” Veldhuis said. “To remain in the metaphor, the water level had to be reduced as quickly as possible to make room for the new wave approaching us.”
However, Viruswaarheid lawyer Gerben van de Corput told the court that the initial ban was correct and should be upheld because the government did not need to use the emergency legislation.
Citing one of the government's advisors who has called the looming threat of more transmissible variants a “dark cloud,” Van de Corput told the judges, “a dark cloud is clearly something different to a dike breach.”
The Netherlands has been in a tough lockdown since mid-December, sending infection numbers slowly lower.
Over the past two weeks, the 7-day rolling average of daily new cases edged lower from 22.98 to 21.39 new cases per 100,000 people.