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ADMINISTRATIVE LAWADMINISTRATIVE LAW

IN NETHERLANDSIN NETHERLANDS

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General Administrative LawGeneral Administrative Law

One of the most important developments in administrativelaw in recent years is the enactment of the General

Administrative Law. The General Administrative Lawconsists of a contentious and a non-contentious. The firstpart of governed:

- The first half on the Act comprises provisions governingthe primary administrative decision-making

- The second half governs objections to an administrativedecision, appeal to a superior administrative body and

judicial review in the administrative court

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Another important feature of the General

Administrative law is the hierachical organization,which means that there are a number of chapterscontaining provisions of a more general nature,followed by chapters with more specific provisions.

From a technical-legal perspective, the administrativeorgan can only be vested with powers in two ways: a)by atribution (means granting original b) by

delegation (means that the organ which has beengranted the original power is authorized by law totransfer all or some of its power to another organ.

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Whohas Administrative Powers?

1. Organs and Legal Persons

Administrative powrs are used by organs, or in moremodern terminology offices. As natural and artificalpersons have the power to create legal effects underprivate law, equally, under public law..

On the next page we can see the State organization

of the Netherlands

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Institutions

Central Government

CrownCrown ParliamentParliament

Decentral government

Provinces (12)Provinces (12)

Commissioner to the KingCommissioner to the Kingand Board of Deputies;and Board of Deputies;Provincial CouncilProvincial Council

Municipalities (496)Municipalities (496)

Mayor and Board ofMayor and Aldermen;

Municipal Council

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The organs at the municipal leve are the MunicipalCouncil, the Municipal Executive, consisting of the

Mayor and the Aldermen, and the Mayor. The publicbody that is the municipality is the legal person.

2. Decentralization versus Deconcentration

andIndependent Administrative Organs

The concept of decentralization must be sharplydistinguished from the concept of desconcentrationand independent administrative organ.

Desconcentration refers to public servants, oftenworking up country, who have their own original orderived powers. The legislature grants originalpowers to a deconcentrated office(r).

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Descentralized public bodies are, of course, not fully

independent. The Netherlands is a decentralizedunitary State. This implies that central governmenthas specific supervisory powers with regard to lowerauthorities. If there is no hierarchical relation

between the minister and the organ, then theadministrative organ is an independentadministrative organ. In the Netherlands, theseindependent organs have been allowed to proliferate

wildly. There are hundreds of them now.

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What instruments are Available to theAdministration?

The power to perform juridical acts under public lawis founded, as a rule, in written law (principe oflegality). As discussed earlier, public bodies have

legal personality and administrative organs are thereal users of the administrative law powers. Themost important legal instruments available to theadministration to defend public interest are the

judicial decisions governed by public law. Two

important issues concern the possible range ofjuridical decisions under public law and the extent towhich the administration is alowed to defend publicinterest via the use of private law.

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Administrative decisions

- Decisions in individual cases

- Decisions of a general import

- Generally applicable regulations

- Decisions on approval, annulment, the coming intoeffect of generally applicable decisions

- Certain plans

- Concrete norms

-

Policy rules

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3.Decisions of a General Import

MayMay bebe subdividedsubdivided intointo generallygenerally applicableapplicableregulationsregulations (AVV) and(AVV) and decisionsdecisions notnot generallygenerallyapplicableapplicable..

AA primaryprimary featurefeature ofof anan AVVAVV isis thatthat thethe actionaction ororoccurrenceoccurrence toto whichwhich thethe lawlaw attachesattaches legallegalconsequencesconsequences..

TheThe followingfollowing decisionsdecisions of a generalof a general importimport areare

notnot generallygenerally applicableapplicable regulationsregulations (AVV):(AVV):

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1.Decisions relating to the opertaions of AVVs.

Like permissions annulments, revocations of the

coming into effect of an AVV. 2.Plans are often decisions of a general import.

One of the most well known example is thezonning plan of Article 10 Spatial Planning Act.

3.Policy rules. Theyre stablished in order to give shape to the

exercise of administrative powers. They dontinvolve a separate power, but are based onexisting administrative powers.

4.Concrete norms (Administrative measures).

-An administrative juridicial act, wich provides anAVV with concrete content and practial applicabiltyto time and place.

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Use of Private law by the administration

Until 1990, the Supreme

Court

Until 1990, the Supreme

Courts view was thes view was theprivate law could be used by the administration, alsoprivate law could be used by the administration, also

in the event of a power governed by public law, inin the event of a power governed by public law, inorder to achieve the same goal. The only restrictionorder to achieve the same goal. The only restrictionwas the administration was not abuse its powerswas the administration was not abuse its powersand its effective power position.and its effective power position.

In 1990, the Supreme Court put a stop to the useIn 1990, the Supreme Court put a stop to the useuse of private law by the administration, if theuse of private law by the administration, if theadminsitration had powers under public law wichadminsitration had powers under public law wich

could be used to attain the same goal. However,could be used to attain the same goal. However,where a statute explicity states that thewhere a statute explicity states that theadminstration can make use of private lawadminstration can make use of private lawinstruments there is no problem in this respect.instruments there is no problem in this respect.

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4.What are the Norms with which theAdministration has to comply?

-The provisions of the General Administrative LawCode and relevant case law;- Unwritten principles of law, as developed by caselaw;

- The generally applicable regulation (AVV) on wichthe power in question is based.- Higher generally applicable regulations (chapeter Iof the Ducth Constitution dealing basic rights).- Erga-omnes (conferring rights and duties) treatyprovisions and decisions by internationalorganizations (Arts. 93,94 Constitution), humanrights as laid down in the European Convention ofHuman Rights.-EC- Treaty provisions and secondary legislationtaken by EC organs.

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4.2Principles of Proper Administration

Due care

NumerousNumerous provisionsprovisions ofof thethe AwbAwb cancan bebe consideredconsidered ananelaborationelaboration ofof thethe principleprinciple ofof duecareduecare::

-- TheThe provisionsprovisions governinggoverning adviceadvice ((ArticleArticle 3:53:5AwbAwb).).

-- AA largelarge numbernumber ofof provisionsprovisions regardingregarding thethepreparationpreparation procedureprocedure (para 3.4. & 3.5(para 3.4. & 3.5 AwbAwb).).

-- TheThe provisionsprovisions ofof ArticleArticle 4:54:5 AwbAwb grantinggranting thethe

opportunityopportunity toto complete andcomplete and imcompleteimcompleteapplicationapplication..

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In addition to this, there are provisions that areIn addition to this, there are provisions that areclosely linked to the principle of due care such as:closely linked to the principle of due care such as:

--The obligation/duty forward documents wich areThe obligation/duty forward documents wich areobviously linked to the competence organ.obviously linked to the competence organ.

-- Acting without prejudice.Acting without prejudice.-- The obligation of the administrative organ toThe obligation of the administrative organ to

expressly include the possibilities of objection.expressly include the possibilities of objection.

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Specifity

--The administrative organ shall use its power to takeThe administrative organ shall use its power to takedecisions for no other purpose than the purpose fordecisions for no other purpose than the purpose forwich the power has been granted.wich the power has been granted.

--The administration may only weight that publicThe administration may only weight that public

interest aspect against the private interest ofinterest aspect against the private interest ofinterested citizens, wich the statute in questionsinterested citizens, wich the statute in questionsaims to protect.aims to protect.

Is important to say that the principle of specifity isIs important to say that the principle of specifity isclosely connected of the principle of legality.closely connected of the principle of legality.

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Proportionality

Art. 3:4.para 2,Art. 3:4.para 2, AwbAwb. Prescribes. Prescribes thatthat thethe adverseadverseeffectseffects ofof anan administrativeadministrative decisiondecision onon oneone oror moremoreinterestedinterested partiesparties mustmust no tno t bebe disproportinatedisproportinate totothethe aimsaims pursuedpursued byby thatthat decisiondecision

ReasoningReasoning

TheThe principleprinciple ofof reasonedreasoned decisionsdecisions hashas twotwo majormajor

functionsfunctions. In. In firstfirst placeplace itit increasesincreases rationalrational decisiondecision--makingmaking byby thethe administrationadministration. In. In secondsecond place,place, ititservesserves asas startingstarting pointpoint forfor thethe interestedinterested citizencitizenwhowho whisheswhishes toto objectobject toto oror appealappeal againstagainst thethedecisiondecision

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AdministrativeAdministrative ProceedingsProceedings

PresentPresent CourtCourt systemsystemCourtCourt organizationorganization (arts. 112, 133(arts. 112, 133 ConstitutionConstitution))

Court orgnization

FirstFirst instanceinstance-- SubSub DistrictDistrict CourtsCourts-- DistrictDistrict CourtsCourts

AppealAppeal-- CourtCourt of Appealof Appeal-- AdministrativeAdministrative CourtsCourtsCassationCassation--SupremeSupreme CourtCourt

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The most Frequent admnistrative proceeedings in the Netherlands

Judicial Departmen of the

conuncil of state

Appeal (other cases) 6 weeks

Central Appellate

Administrative Court

Appeal (social security and

public service cases) 6 weeks

District Court

Decisions on Ojbection

Original Decision

Hearing

Application for on ex officio

Appeal to District

Court (6 Weeks)

Administrative

objection (6 weeks)