For example, interpretative rules, general statements of policy and rules of agency organization and procedure are exempted.
After the key definitions in the first chapter, the second chapter of the GALA continues with general rules about dealings between citizens and administrative authorities. About Press Blog People Papers Job Board We're Hiring! KNAW Narcis.
Ymre E. Schuurmans All authors work at the Constitutional and Administrative Law Department of Leiden University; Tom Barhuysen and Willemien den Ouden as Professors in Constitutional and Administrative law, Ymre Schuurmans as an Associate Professor. Tom Barkhuysen is also a practising of the Amsterdam Bar at Stibbe.
by Wim Voermans and Ymre Schuurmans. This paper looks into the way in which appeal and judicial review by EU courts is or can be (made) instrumental to better regulation. We look into the way EU courts review EU legislation before and after the Lisbon Treaty and try to think ...
Ymre Schuurmans - Academia.edu
by Wim Voermans and Ymre Schuurmans. This paper looks into the way in which appeal and judicial review by EU courts is or can be (made) instrumental to better regulation. We look into the way EU courts review EU legislation before and after the Lisbon Treaty and try to think ...
by Wim Voermans and Ymre Schuurmans. This paper looks into the way in which appeal and judicial review by EU courts is or can be (made) instrumental to better regulation. We look into the way EU courts review EU legislation before and after the Lisbon Treaty and try to think.
Ontstaan en vorming van het Nederlandse algemene bestuursrecht, Alphen aan den Rijn: Samsom H. Tjeenk Willink An important role in the process of structuring and ordering the general part of administrative law at the absence of any general codification was played by the Vereniging voor Administratief Recht VAR which initiated a commission to analyse Dutch administrative law to develop general principles of administrative law which could be suitable for codification.
The first edition of the report of this commissie inzake algemene bepalingen van administratief recht was published in , the last edition in Algemene bepalingen van administratief recht, Rapport van de commissie inzake algemene bepalingen van administratief recht, Alphen aan den Rijn: Samsom H.
See for descriptions of the history of Dutch administrative law also: A. Donner, Nederlands bestuursrecht. Algemeen deel, Alphen aan den Rijn: Samsom H. Tjeenk Willink , p. Schlössels and S. Zijlstra, Bestuursrecht in de sociale rechtsstaat, Deventer: Kluwer , p. At the same day a very important act to modify the provisions on administrative courts procedures was enacted see Staatsblad , and Staatsblad , If numerous specific acts, rules and regulations differ from the general rule provided for in GALA by using different terms, systems or by providing for the same legal item or subject, the harmonizing effect aimed for will not be achieved.
For this reason, together with the enactment of a part of GALA, bills and other regulations are enacted to bring acts, rules and regulations in conformity with GALA. In order to do justice to the desired harmonisation of Dutch administrative law, it is not sufficient to allow amending legislation to come into force at the same time that an amendment or alteration to General Administrative Law Act comes into force.
After legislation has become effective, it will still have to be in principle in accordance with the relevant provisions of the General Administrative Law Act. In essence, the special legislator is not allowed on the basis of the Instructions for regulation Aanwijzingen voor de regelgeving to deviate from the General Administrative Law Act. In fact, to a certain extent, it is the case here that general law takes precedence over special law.
The picture just outlined must, however, be filled out. The latitude allowed to the special legislator and regulator to make their own regulations in the field of general administrative law depends on the degree to which any law set down in the General Administrative Law Act is compulsory.
The greater the degree of compulsion the greater the harmonizing effect of the provision will be. The General Administrative Law Act has four kinds of provision in this respect: obligatory provisions, directory law customary provisions , supplementary law safety net provisions and facultative law.
The lower regulator may not deviate from an obligatory provision. Legislative policy has set down that the special legislator may not deviate from this, unless there are particular reasons for doing so. The structure of the General Administrative Law Act can be found in appendix I. In short, GALA plays a crucial role in the Dutch law on administrative decision making.
As I will explain hereinafter the level of detail and the kind of provisions applicable depend on the kind of administrative act involved. The administrative act In Dutch administrative law the Besluit decision plays a crucial role as a point of departure of legal provisions regulating both administrative decisionmaking mainly chapters 3 and 4 GALA and legal protection mainly article ff GALA.
The individual decision, the beschikking, is a decision which does not have a general application and it includes a refusal to grant an application for such a decision article , second paragraph, GALA. This is an explicit, real refusal. The same applies to the explicit refusal to take any decision. The character of the administrative act determines the applicability of GALA provisions. As we will see below GALA not only provides for rules on the procedure of the making of individual decisions beschikkingen , but also on the making of other administrative decisions such as policy rules beleidsregels , generally binding regulations algemeen verbindende voorschriften and even factual acts feitelijke handelingen.
A good illustration of the subtle applicability of GALA provisions offers the important Article GALA, which reads as follows: 1. If a decision contains generally binding rules: a. The provisions of divisions 3. Other features which are common in administrative law systems such as the written and the external character of the decision also play some role in legal scholarship on the definition of administrative decision the besluitbegrip , but not too explicit.
The requirement of a written administrative decision means that the decision should be knowable from any written source. The Dutch approach on the acts of administrative authorities can best be explained with the following common schedule: 8 Article GALA: For the purposes of the provisions of law on objections and appeals, the following are equated with a decision: a. Damen et al. Schlössels, S. Zijlstra, Bestuursrecht in de sociale rechtsstaat, Deventer: Kluwer I should also point at F.
Huisman, G. Strategic interpretation of administrative decision strategisch besluitbegrip 11 As the interpretation of the besluitbegrip determines access to an administrative court a strategic interpretation of administrative decision has evolved resulting into certain decisions to be considered or equated with a besluit.
Two important examples are the formal administrative opinion on the interpretation of a legal provision bestuurlijk rechtsoordeel , the notification that a certain transgression will not lead to an administrative sanction, will be tolerated gedoogverklaring and the warning waarschuwing.
These examples all have in common that they do not really aim at the creation of legal consequences which is a requirement to consider them a juridical act and therefore as a besluit. At the same time administrative courts in complicated case law equate them with or consider them besluit to offer an effective remedy or for reasons of procedural effectiveness.
For similar reasons administrative courts would sometimes asume civil law juridicial acts to be public law juridical acts. On 12 November the Staatsraad Advocaat-Generaal Widdershoven gave an important opinion on the legal question under what circumstances different kinds of reactions by administrative authorities on notifications meldingen should be considered a Besluit.
The issue the Staatsraad Advocaat- Generaal Widdershoven adresses illustrates the complex character of the definition of administrative decision besluit and the consequences of the strategic interpretation for the complexity of this legal term very well. Het begrip besluit is een juridisch- technisch begrip dat, ondanks zijn lange geschiedenis, aan de randen nog steeds veel discussie veroorzaakt.
Het is ook een complex begrip waarvan de inhoud wordt bepaald door abstracte noties, die voor niet-ingewijden nauwelijks zijn te begrijpen. Als gevolg hiervan is ook deze conclusie voor hen vermoedelijk een moeizaam stuk, ook al heb ik geprobeerd zo duidelijk mogelijk te zijn. Vanwege het complexe karakter wordt in de literatuur al vele jaren gediscussieerd over de vraag of het besluitbegrip wel geschikt is om, zoals hierna zal blijken, bepalend te zijn voor de toegang tot de bestuursrechter.
The concept of besluit administrative decision is a technical legal concept which still causes a lot of discussion at the borders of its definition despite its long history. It is a complicated concept as well which contents are determined by abstract notions which can barely be understood by non-insiders.
As will be shown in my opnion, due to the complex character of this notion legal scholarship is discussing the question for years allready whether the notion of besluit is in fact suitable to determine access to judicial review in administrative matters. The general regulation on administrative decisionmaking 4.
In addition to general principles such as the principle of legal certainty rechtszekerheidsbeginsel and the principle of equality gelijkheidsbeginsel , administrative law distinguishes the general principles of proper administration [Algemene beginselen van behoorlijk bestuur].
These principles are partly codified in GALA, and in so far as norms that are derived from these principles are not codified these norms will apply as unwritten law. European administrative law adds new interpretations to existing national principles, such as the limited legal effect of the national principle of legitimate expectations in so far as EU administrative decisionmaking by national administrative authorities is involved or the addition to the substantive content of the national principle of due care of the EU principle of loyal cooperation.
The principle of transparency transparantiebeginsel and the principle of defence verdedigingsbeginsel are clear examples of the introduction of new legal principles in the national legal order due to the influence of EU law. Dutch literature as well as case law on general principles of proper administration is extensive.
In Dutch legal scholarship a distinction is also made between general principles of proper administration algemene beginselen van behoorlijk bestuur and general principles of proper procedure [beginselen van behoorlijke rechtspleging.
Zijlstra, Bestuursrecht in de sociale rechtsstaat, Kluwer, Deventer , pp. Tjeenk Willink, Zwolle ; M. Schreuder-Vlasblom, Rechtsbescherming en bestuurlijke voorprocedure, fourth edition, Kluwer, Deventer Some principles have not been codified at all, others just partly.
This means that the body of principles has a supplementary role. Further, in order to find a rule on administrative decisionmaking one should consider that the General Administrative Law Act is built up in layers. In order, for example, to give an answer to the question whether an appeal can be lodged against a decision of an administrative body, the relevant provisions of Chapters 8, 7 and 1 of the General Administrative Law Act have to be consulted. For questions concerning subsidies the relevant provisions in Chapter 4 Title 4.
For questions concerning which norms should be observed in a decision concerning an astreinte or an administrative fine from this administrative authority, the relevant provisions in Chapters 5, 4, 3, 2 and 1 from this act should be studied.
Due to the limited space this contribution offers to discuss the general GALA regulation on administrative decisionmaking I will limit the analysis to participation and the right to be heard, the duty to decide upon application and the duty to give reasons. I should clarify first that participatie in the Dutch language has a different meaning than inspraak, although both are to be translated with participation.
These provisions apply if the special act so determines, which was done in about 60 acts. Arnstein, A Ladder of Citizen Participation, Journal of the American Planning Association , p. In some cases anyone has the possibility to participate by expressing their views on a draft decision. Interested parties will have the opportunity to express their vies, and if the draft decision is a decision on a application the applicant will have the opprotunity to comment on these views.
If the draft decision is a decision to amend or revoke another decision the person addressed by the decision to be amended or revoked will have a similar possibility Article GALA.
An administrative authority can also decide to follow a procedure of inspraak if the act does not provide for such a requirement. Right to be heard The scope of the right to be heard in Dutch administrative law depends on the phase in the procedure and, at least in the procedure to prepare a decision, on the kind of decision.
The right to be heard is rather limited in the procedure preparing a decision in primo see Articles - GALA. This choice of the legislator is closely related to the broader right to be heard in the objection procedure bezwaarschriftprocedure see Article and GALA.
The idea is that the objection procedure will be used to repair mistakes made in the first phase. In the decision-making procedure, administrative authorities have limited obligations to hear interested parties. The obligation is seen as a specific requirement deriving from the principle of due care zorgvuldigheidsbeginsel. In other words, this obligation does not have the purpose of guaranteeing a defence right.
The main provisions are Articles and division 4. The key provisions of this division are articles GALA which read as follows: 1. Before refusing all or part of an application for an individual decision an administrative authority shall give the applicant the opportunity to express his views if: a.
I counted regulations of municipalities inspraakverordening , 10 of Provinces, 2 of regional bodies of cooperation gemeenschappelijke regelingen and 20 of waterboards Waterschappen. See www. Paragraph 1 does not apply if the difference from the application can only have minor significance for the applicant. Before an administrative authority takes a decision about which an interested party other than the applicant can be expected to have reservations, it must give this interested party the opportunity to express his views if: a.
Paragraph 1 does not apply if the interested party has failed to comply with a statutory obligation to supply information. If the administrative authority intends to impose a sanction or measure on someone, i.
This obligation is related to the intention to make a decision, not on the outcome of some investigation. This means that this obligation only applies towards the end of a procedure.
The citizen or the interested party has the right to choose whether he or she will be heard orally or in writing Article GALA. It is up to the administrative authority to decide what form the oral hearing will take. In some cases, a phone call may be sufficient. As administrative fines are financial decisions in the sense of Article GALA, an exception is made to Division 4. The obligation of administrative authorities to hear an interested party when it intends to impose an administrative fine is no longer only to promote a careful preparation of decisions, but is now aimed at guaranteeing a defence right.
This is to ensure that the procedure to impose administrative fines will be in conformity with the demands of Article 6 ECHR. In the primary phase, a right to receive minutes of the hearing does not exist. In any case, the citizen does not have the right to approve the minutes as it is the administrative authority that is responsible for writing them.
The letter of the interested party or his or her representative to comment on the minutes of the hearing will be added to the dossier. The administrative authority can, of course, change the minutes as a result of the comments of the citizen, but he or she just does not have the right to approve them.
The preparation of the General Administrative Law Act took a long time. As early as , the government set up an initial working party led by the then State Secretary of Justice, Michiel Scheltema, which was assigned the job of drafting general rules of administrative law.
In addition to legislative staffers, administrative law academics invariably sat on this commission. Further, administrative legislation had to be systematised and, where possible, simplified and significant administrative case law developments could be codified.
Finally, the Commission considered the possibility of adopting general rules for administrative law subjects that, by their nature, are not suitable for specific statutes. In the end, the preliminary drafts drawn up by the Scheltema Commission evolved into the General Administrative Law Act GALA.
The GALA is a piece of legislation that continues to evolve. The first two major tranches of the Act entered into force on 1 January These tranches laid a solid foundation of an Act designed to provide a regulatory framework for administrative authorities that issue orders and to grant interested parties the right of appeal to the administrative court.
Accordingly, the Act regulates both the administrative decision-making process and the legal protection against it. In addition, minor and major legislative proposals designed to supplement the GALA are instituted quite regularly, which means it is an ongoing legislative process.
Given the objective of making administrative law uniform, the legislator had to make some fundamental choices. In quite a detailed fashion, it deals with the general approach of the legal relationship between administrative authorities and citizens. The legislator advanced a larger responsibility for individuals, resulting in procedural duties such as the duty to state the grounds of appeal and to adduce evidence.
It was especially judicial procedure law that prompted the legislator to present fundamental considerations about the nature of administrative law and the duties of the court. An important development is that the legislator gave priority to legal protection over the principle of legality. This means that if any order conflicts with specific rules but the interested party has not objected to that, the order does not have to be annulled. In this context, the legislator attaches significance to judicial efficiency; procedural law should be both effective and efficient.
In addition, there should be a low threshold for administrative proceedings. Individuals should be able to go to court at low costs, with few formalities and without an attorney-at-law. The court is active and may, if necessary, counterbalance the inequality between the individual and the administrative authority.
This fundamental orientation has an impact on the law of administrative procedure as well. During the decision-making, too, an individual should be able to defend his or her position easily. Naturally, the administrative authority is required to observe the principle of legality, but it should also explicitly consider speed and judicial efficiency.
Apart from the foregoing, the General Administrative Law Act — and indeed, Dutch administrative law in general? This may be illustrated by the example of the participation rights of individuals. See Articles — GALA. In preparing orders, administrative authorities are required to involve individuals in the decision-making process in advance only to a limited extent.
Only if the rejection of an application is based on information on facts that relate to the applicant individually and this information differs from the information he or she supplied, is the administrative authority required to give the applicant the opportunity to state his view. Similarly, interested parties who did not file any application have the right to be heard only if the decision prepared is based on information that relates to them.
In addition, these hearing rights can be discarded if the decision concerns only financial obligations or whenever the need for expedition requires this exception. Not until interested parties appeal against an order within the administration , do they have full rights to a hearing.
Aside from these general considerations, it is mainly the following three key definitions in the GALA that denote the fundamental orientation of the Act: administrative authority, interested party and order. Article of the GALA contains a definition of an administrative authority; subsequently, the GALA provides for general rules governing acts performed by administrative authorities.
Article GALA includes a definition of an order made by an administrative authority: a written decision of an administrative authority constituting a public-law juridical act. This provision determines to a great extent the scope of the rules of the GALA and the scope of Dutch administrative law in general, as was already shown in section 3. An appeal to the administrative court lies only against orders of administrative authorities Art.
Prior to the GALA, the right of appeal of interested parties was often restricted to individual decisions beschikkingen. The Act provided that after five years the exclusion of the right to appeal against rules would be abolished. After several years, however, the legislator feared a huge incentive for people to file appeals and maintained the exclusion in Article GALA.
These key definitions have had a major harmonising effect, because they apply to the full range of administrative law. Whenever a special law empowers any administrative authority to issue an order, it is required, when exercising such powers, to comply with the GALA rules. If the administrative authority fails to do so, an interested party may, as a general rule, request the administrative court to annul the order.
After the key definitions in the first chapter, the second chapter of the GALA continues with general rules about dealings between citizens and administrative authorities. These rules apply to all dealings between individuals and administrative authorities and are of a very general nature. For example, Article GALA includes a general provision prohibiting administrative authorities from performing their duties in a biased manner. There are some relatively new provisions about electronic communication between administrative authorities and interested parties.
Chapter 3 contains general provisions on orders, such as provisions concerning the preparation and notification of orders and the duty to state reasons for them. This chapter places important quality requirements on the decision-making practice.
For example, orders must be prepared with due care Art. Division 3. This procedure must be followed if an order involves many interested parties, or if many interests must be balanced against each other, for example, in the case of infrastructure projects. In that case, a draft order is made available for inspection and interested parties have the right to be consulted.
Not until this public participation process has finished is the final order made. From the perspective of administrative procedures, Division 3. It imposes an obligation of means on administrative authorities to inform individuals and businesses, applying for licences or grants for a specific activity, in the best possible manner about other orders for which an application must be filed, before they are permitted to perform the activity. Further, this division contains coordination rules for streamlining procedures for related orders.
Next, Chapter 4 GALA includes provisions on specific types of orders, such as individual decisions and, particularly, on orders granting subsidies and orders relating to money debts arising from administrative law. There are provisions, for example, allowing interested parties to express their views and to participate, on the time limit for orders and on what an interested party can do if the administrative authority fails to meet this time limit.
Chapter 5 of the GALA relates to the enforcement of regulation by administrative authorities. The administrative authority may, for instance, refuse to consider incomplete applications; it must act with due care, provide reasons for its orders and it must, in the case of an administrative enforcement order, state the time limit within which the violator can carry out the enforcement order. Often, the act does not prescribe in precise terms how the administrative authority should give substance to these general rules.
As a result administrative authorities have a considerable scope of discretion to decide on the details of the general procedural rules. This is why case law analysis is an important factor in Dutch administrative law studies, because it is only by means of this casuistry that the meaning of the general rules can be properly grasped. Chapters 6, 7 and 8 contain rules for legal protection under administrative law. Bearing in mind the focus of the questionnaire, we will just say that it is mainly individual decisions that can be challenged on appeal before an administrative court, usually only after a preliminary procedure within the administrative system has been followed.
In some cases, appeal lies to other appellate courts, such as the Central Appeals Tribunal, the Trade and Industry Appeals Tribunal or the Tax Courts.
Chapter 9 of the GALA deals with complaint handling by administrative authorities and Chapter 10 contains provisions on conferral of powers and delegation of the power to make orders and the requirement of approval of orders by other administrative authorities supervision of administrative authorities.
The final provisions of the Act, which includes the duty to draw up evaluation reports, are laid down in Chapter For example, where an administrative authority makes an order to pay an advance in anticipation of a sum of money to be paid later Art.
Further, the specific provisions relating to individual decisions of Division 4. Naturally, the same is true of the statutory provisions governing the special area of law within which the claim to an administrative sum of money is created, for example, under social security legislation. In addition to the GALA, there are a great many specific administrative laws. The relationship between general and special rules is defined primarily by the possibilities specified by the GALA itself for drafters of legislation in special branches of law to vary from and supplement the general rules.
In this context, four kinds of general rules can be distinguished. First, the GALA contains mandatory provisions. These are rules that are applicable, without any exception, to administrative law as a whole, for example, the rule that administrative powers may not be used for a purpose other than for which they were conferred Art.
Secondary legislators cannot make an exception to the foregoing. This holds true, for example, of the provision that an application for an individual decision must be submitted in writing Art. An example can be found in Art. The time limit for an individual decision depends on the type of decision applied for and that is why this time limit had better be laid down in a special law.
The above-mentioned Division 3. This uniform preparatory public procedure is applicable if it is so provided by the special legislator or by the relevant administrative authority making the order.
Consequently, the GALA provides for an inherently flexible regulatory framework for Dutch administrative procedures, leaving the drafters of special laws and administrative authorities a wide scope of discretion in some respects.
In addition, it should be borne in mind that the GALA does not have a special status as an Act of Parliament. This means that special laws of the same status i. Important specific statutes containing departures from the GALA include the Aliens Act Vreemdelingenwet and the Crisis and Recovery Act from Crisis- en herstelwet , which was designed to accelerate the realization of major infrastructure projects in particular.
All in all, the enactment of the first four tranches of the GALA and some smaller legislative proposals formed a legislative operation that cannot be easily surpassed, in terms of its scope and speed, in the Netherlands. The operation not only introduced a fundamental general Act with a broad scope of application but also triggered a huge operation to amend other legislation.
The legislation needed to amend special laws, so as to bring them in line with the provisions of the GALA, comprises thousands of amendments spread across hundreds of statutes.
The impact of this Act on Dutch administrative law has therefore been great; some have even called it a cultural revolution in the field of administrative law. Where previously those seeking general concepts and principles of administrative law had to explore a patchwork of special branches of law, special laws and case law of special administrative courts, the GALA, with its basic definitions and general rules, now provides some structure.
To this extent, the GALA has triggered a process leading towards greater uniformity. One cannot say that the codification of general administrative law in the GALA has been preceded by a very fierce debate, which is probably due to the broad composition of the Scheltema Commission, the general character of the code and its evolving nature. Nevertheless, the GALA project has been criticized in the Netherlands right from the beginning and to this very day.
Initially, there was a great deal of resistance from various special branches of law and the line ministries. The general rules of GALA would leave insufficient room for carefully shaping the decision-making with due regard for the special characteristics of the branch of law concerned.
The question what subjects were suitable to be regulated in general rules was also discussed. For example, not everyone was convinced that rules on subsidy orders belonged in the GALA.
The choice and prioritization of subjects addressed by the GALA were criticized anyway. In time, many experts regretted the absence of a comprehensive view on the legislative project of the GALA.
Even now, it is often pointed out that the present GALA fails to deal with obvious topics, such as provisions on the withdrawal of individual decisions as well as provisions on administrative contracts. At this juncture, some main debates on administrative law are being held against the background of the GALA and a few proposed amendments.
The idea that current administrative law provides too many safeguards for individuals is expressed primarily by politicians and representatives of administrative authorities.
One of the solutions is to allow public participation or a day in court to fewer individuals or entities. Over the past few years, restrictions in this area have been imposed mainly on associations and foundations that defend general interests. In addition, administrative law is said to be far too complex, also due to the rapid succession of legislative amendments especially in the field of environmental and planning law. Further, the idea exists that many built-in safeguards in fact do not contribute to high-quality decision-making, but to delays.
For this reason, the legislative process is now showing a clear focus on developing faster procedures. Finally, as is hardly surprising given the financial crisis, there is a clear focus on cost management. Very briefly, one might say that where from the s, there was a focus on the safeguard function of administrative law, there is now a greater focus on its instrumental function.
For example, the possibilities for the court to disregard specific defects in administrative orders have been broadened in recent years.
This means that if an order does not meet specific formal standards, it need not always be annulled. Naturally, this has consequences for the manner in which administrative authorities structure their decision-making processes, because they do not have to be afraid that their orders will be annulled by the court due to technicalities.
Application of the relativity requirement will mean, for example, that undertakings can invoke only standards that are actually designed to protect their interests.
To date, this requirement does not apply as yet, except for the special regime of the Crisis and Recovery Act.
Currently, interested parties may enforce compliance with all standards applicable to the government before an administrative court.
The introduction of the relativity requirement will change that and make it easier for administrative authorities to ignore specific substantive standards. But this is too simple a conclusion, because the application of the relativity requirement will trigger a technical legal debate. In addition, it is said that the proposed measures referred to above help to create administrative law of a kind that effectively gives means of challenging orders only to very alert and well- educated individuals: those who attend public hearings, go to the town hall to inspect draft orders, raise objections to these in a timely manner, lodge well-substantiated notices of appeal and submit counteradvice in order to refute the advice rendered by administrative authorities.
Although litigation without compulsory legal representation is a formal principle of Dutch administrative law, it is increasingly difficult to defend a case without engaging a specialized lawyer. Such actions by administrative authorities and the administrative courts — whether encouraged by the legislator or otherwise — are therefore fiercely criticized by those focusing on the position of individuals in administrative law. They point out that administrative authorities usually issue orders that are of poor quality and that they adopt too formalistic an attitude, with counterproductive effects as far as effective administration is concerned.
On this issue, there seems to be an arms race. Many public law scholars consider this a worrying development. Like the increasing complexity of administrative rules, the expertise of administrative authorities is another important issue. As a result of the ever-widening scope of administrative law because of the ever-growing role of the government, administrative authorities are required to have technical expertise in many areas.
Examples include complicated environmental issues, the assessment of the remaining earning capacity of a disabled person and — in the context of the ever-increasing economization of administrative law — the question whether a merger between two undertakings will result in a conglomerate with significant market power within the meaning of competition law. Consequently, the quality of administrative orders is under pressure, which can only partly be compensated for by the engagement of consultants.
It remains difficult for generally educated public servants and judges to properly appreciate specialized information. For example, many questions arise where the administrative authority is confronted with two expert reports that contradict each other. As a result of this development, too, particularly the procedural rules relating to consultancy 27 x Articles GALA.
It is also said that the jurisdiction provisions in the GALA reinforce the juridification trend. Consequently, a multitude of fragmented procedures may arise. If jurisdiction under the GALA extended to acts without any intended legal effect and civil-law juridical acts, these acts would probably be governed by the rules of the GALA to a greater extent.
There is certainly positive news in this area, too. A fair and courteous treatment attracts a great deal of governmental attention. For example, under the new approach, administrative authorities must invite objectors for a personal interview within a few days. Finally, an important debate in the Netherlands concerns the question whether the pursuit of generally applicable administrative law has gone too far.
The procedural rules would have to be adjusted a little, depending on the branch of law concerned and the specific legal relationship at issue, inter alia , taking account of the interests concerned and the professionalism of the parties.
For example, it has been suggested that administrative authorities should prepare an order on an asylum application quite differently? The flexibility offered by the GALA itself is not always perceived as sufficient.
On the other hand, where the legislature is experimenting with variations from the GALA, these often attract a great deal of criticism as well. A recent phenomenon is that legal concepts which differ from the GALA rules are put to the test in special laws, also for the purpose of ascertaining whether they could eventually be incorporated into the GALA.
In particular, the above-mentioned Crisis and Recovery Act provides an example. What is particularly problematic is that this statute constitutes a temporary infringement of the GALA the Act expires on 1 January , but that the current right-wing government is so content with this system of reduced legal protection, that it intends to convert it into a permanent law even before it has been evaluated. This government plan is in line with the coalition agreement signed in , which stipulates that the government will come up with proposals for the simplification and modernization of the GALA.
The GALA will be further amended and supplemented in the near future. Finally, we will reflect on the impact of international law on Dutch administrative law.
This impact is great, as the relevant provisions of the Dutch Constitution Articles 93 and 94 are based on the notion of direct effect of international law within the Dutch legal system. Individuals can invoke self-executing treaty provisions in court, and in case of any conflict, these will prevail over national law. The direct effect and supremacy of EU law follows, as is generally known, from the supranational nature of this treaty law itself and so this also applies to the Netherlands.
From the beginning, the GALA legislator has been aware of the international context. Besides the needs of the users and politicians, the legislator had to operate within a framework where the Constitution, the principles of law, EU law and international conventions like the ICCPR and the ECHR play a role. The Benthem ruling issued by the Strasbourg Court?
This ruling from was a real eye-opener for administrators and administrative lawyers in the Netherlands alike. It became clear that the ECHR and in particular Article 6 of the Convention, which had attracted hardly any attention when the ECHR was approved in the s, could certainly be important to administrative law and, hence, to the GALA. In order to keep this report within reasonable limits, we will focus our attention on the impact of EU law and the ECHR, as the main sources of internationalization in this area of law, on the general Dutch rules concerning administrative procedures.
The significance of EU law for Dutch administrative law can hardly be overestimated. In an increasing number of branches of substantive law, the European Union directly or indirectly prescribes rules for administrative acts.
For example, agricultural law, the law on fisheries and transportation and customs law have long been dominated by the European legislator. To the extent that these areas still leave room for national implementing legislation, such legislation is based on European concepts and principles.
The situation is different for general administrative law. Although the principles of Dutch administrative law are influenced by European developments, one cannot say that its foundations have been affected by these. The EU legal system of implementation, execution and enforcement of Community law by means of national law, within the limits of equivalence and effectiveness, usually 30 x The legality requirement is an exception, as far as this requirement is concerned, administrative courts offer fierce resistance where it is affected as a result of the European principle of effective implementation.
Jans, S. Prechal, R. Widdershoven, Inleiding tot het Europees bestuursrecht, Nijmegen: AAeL Given the above mentioned developments, it is understandable that the GALA legislator has increasingly focused on European law aspects during the legislative project. It can be established that the first clear signs of influence are especially related to specific high-profile affairs. In this context, the legislative proposal for the recovery of state aid has been brought before Parliament, inter alia.
This legislative proposal concerns a standard scheme that is to be added to the GALA enabling administrative authorities to comply with their Community obligations under state aid law. After this Act will be entered into force, administrative authorities will generally be entitled to take withdrawal and recovery decisions, when the case law of national or European courts shows that unlawful state aid has been provided.
Administrative authorities will also be allowed longer decision times for cases in which they must verify whether the aid they intend to provide is compatible with the EU Treaty. In order to implement the Directive, the Dutch legislator has drafted the Services Act but, interestingly enough, also it made??
In addition to these examples of influence by European law resulting in legislation, it should be noted that this influence is clearly shown in the relevant case law. These concern, in addition to aspects of administrative procedure, particularly interpretations of general principles of sound administration.
These are obviously important to the law concerning administrative procedures; they also determine the standards of the decision- making process. In recent years, it has become clear that the Dutch legal certainty principle and the principle of legitimate expectations, for example, cannot be fully applied in European cases. If, for example, recovery decisions must be taken by national authorities, Dutch administrative courts are required, where disputes arise about these, to apply a stricter interpretation by virtue of European case law, which gives individuals less protection.
An interesting question is whether such stricter interpretation, in the context of the pursuit of legal unity and equality, is also applicable or should be applicable to purely domestic recovery disputes. There is a lively debate on that issue. For the time being it seems that in domestic cases, Dutch administrative courts adhere to the Dutch doctrine. An example of a new general principle of sound administration is the principle of transparency, which was unknown to Dutch administrative law, but which the administrative courts increasingly apply, inspired by European law.
Especially in case of allocation of limited public authorizations and grants, this principle is of great importance for the actions of the administrative authorities.
Although the precise meaning of the transparency principle and its importance for Dutch administrative law has not yet crystallized, it can be expected that the principle will eventually lead to amendments to the GALA. The ECHR has left a clear mark on Dutch administrative law, not least because of the aforementioned infamous Benthem case. The legislature was well aware that the structure of administrative legal protection has to meet international human rights standards, where it paid special attention to Article 6 ECHR.
Whether or not on the initiative of litigants or legal scholars, the legislator, the courts and the administration regularly examine whether the ECHR requires amendments to the GALA itself or changes to its application in, inter alia , case law.
Better_Regulation_by_Appeal.pdf - Better Regulation by ...
Electronic copy available at: 1 Better Regulation by Appeal Wim Voermans and Ymre Schuurmans 1 Abstract This paper looks into the way in which appeal and judicial review by EU courts is or can be (made) instrumental to better regulation. We look into the way EU courts review EU legislation before and after the Lisbon Treaty and try to think through what the Treaty changes will bring after ...
Wim Voermans & Ymre Schuurmans, ‘Better Regulation by Appeal’, () 17 European Public Law, 4 any act of general application irrespective of its form” At the same time, it is hard to sustain that ‘regulatory act’ should be the umbrella term, when the distinction between ‘legislative’. Electronic copy available at: 1 Better Regulation by Appeal Wim Voermans and Ymre Schuurmans 1 Abstract This paper looks into the way in which appeal and judicial review by EU courts is or can be (made) instrumental to better regulation. We look into the way EU courts review EU legislation before and after the Lisbon Treaty and try to think through what the Treaty changes will bring after. by Wim Voermans and Ymre Schuurmans. This paper looks into the way in which appeal and judicial review by EU courts is or can be (made) instrumental to better regulation. We look into the way EU courts review EU legislation before and after the Lisbon Treaty and try to think.
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Citeerwijze van dit artikel: prof. Tom Barkhuysen, prof. Ymre E. In the Netherlands law in general embodies two kinds of legal rules concerning administrative procedures. First, there are hundreds if not thousands of statutory provisions that grant administrative authorities the power to act for the purpose of performing a public service and that regulate such action in a detailed way. This includes specific rules in numerous branches of law, such as social security law, immigration law or environmental law.
This Act regulates the process of administrative decision-making in a general sense and provides a general framework for legal protection against the orders issued. In this contribution, we will first describe the history of Dutch administrative law and the GALA, with a focus on administrative procedures.
The article is based on the questionnaire included in appendix 1. With the sketch of that law system in mind, it will be easier to comment on the scope of the comparison. For general information on Dutch administrative law, we would like to Ymre Schuurmans Milf Amy some renowned handbooks. Schreuder-Vlasblom, Rechtsbescherming en bestuurlijke voorprocedure, Deventer: Kluwer ; R. Zijlstra, Bestuursrecht in de sociale rechtsstaat, Deventer: Kluwer ; L.
A Damen, Bestuursrecht: Dl. Barkhuysen, W. As for English-language and French-language literature, reference is made to the following works: P. Adriaanse, T. Chorus, P. Gerver, E. Hondius, Introduction to Dutch law, Alphen aan den rijn: Kluwer Law International ; J. Schilder, A Survey of Dutch Administrative Law, Nijmegen: Ars Aequi Libri The development of the Dutch law on administrative procedures should be viewed in relation to the nature and extent of government action in the Netherlands.
Until the second half of the Ficken Im Puff century, such government action comprised, apart from legislation, primarily the regulation and maintenance of public order. The major expansion of government action did not take place until the second half of the nineteenth century as a result of the democratisation of society and the adoption of general suffrage, first for men in and soon afterwards, for women The subsequent socialization of society meant that the government adopted many measures in such fields as working conditions, public housing and public health.
Due to the economic crisis of the s and the emergency measures the government took to deal with this crisis, government regulation of economic matters became common.
After the Second World War, the reconstruction of the Netherlands required Ymre Schuurmans action in a variety of fields in society. Since the s, the Dutch public debate has triggered continuing calls for slimming down the machinery of government, reducing the number of government responsibilities and deregulation. Even though these have invariably been official objectives of the successive governments since then, not much progress has been made in these areas.
In practice, it turns out that reducing government responsibilities, civil servants and government rules is difficult to achieve. Administrative law in the Netherlands has not had a long tradition of judicial review of administrative authorities. Traditionally, Ymre Schuurmans protection has been organized mainly within the administrative system.
Administrative powers are created and regulated in separate statutes, which frequently create special legal procedures as well. This has given rise to a highly fragmented system of administrative procedures, somewhat like Agischewa Nackt English tribunal system.
Nowadays, there is a clear-cut divide between administrative and judicial bodies, but this has not always been the case. This technique means that specific rules are not just laid down in statutes but that, quite frequently, rulemaking powers are delegated to subordinate legislators. Besides, such legislation often confers discretionary administrative powers on public authorities on a large scale.
Due to the enormous size and diversity of administrative law and the phenomenon of delegated rulemaking powers, administrative law became a complex branch of law. Accordingly, calls for systematization and simplification through codification were to be expected.
The first few Dutch administrative statutes designed to harmonize the law in a general sense addressed mainly the issue of legal protection. The Administrative Decisions Review Act of Wet beroep administratieve beschikkingen created the possibility of administrative appeal to the Crown hence, the administration against all decisions of the central government against which there was no other legal protection.
Inthis Act was replaced by the Administrative Decisions Appeals Act Wet administratieve rechtspraak overheidsbeschikkingenwhich provided for appeals against nearly all administrative decisions that were not subject to another legal protection system to be brought to a new administrative court : the Judicial Luigino Bruni of the Council of State. The case law of this division helped to harmonize administrative law, but the urge for a general codification effort was still felt broadly.
Init was laid down in Article of the Dutch Constitution that the general rules of administrative law had to be adopted by Act of Parliament. Before dealing with the codification of these general rules in the GALA, we will discuss the scope of administrative procedures in the Netherlands. Once this Masseur Sex has been determined, it will be easier to understand the main features of the GALA.
Naturally, it is quite complex to define precisely what procedural law encompasses. For example, procedure does not extend to the substantive standard that defines for what kinds of building projects an administrative authority may issue a permit.
Rather, administrative procedure refers to the general rules governing the acts performed by the administrative authority, such as the rules about the decision-making process, including the preparation of the order. In addition, the rules and principles that determine when an order enters into force or when it is no longer valid are considered part of the law of administrative procedure in the Netherlands, as are the rules governing the possibilities of amending and revoking orders that have been made earlier.
If the administrative authority fails to make an order within the relevant decision period, a citizen may serve a notice of default on it, after which it incurs a default penalty. In the Netherlands, the applicable rules of administrative procedure are determined to a great extent by the type of action taken by administrative authorities. Orders come in various forms, like Blair Williams Boobpedia, plans, policy rules and individual decisions.
The administrative rules applicable differ from type to type and mainly regulate individual decisions. In this context, it is also relevant whether an order is made at the request of a private party or on the initiative of the administrative authority itself.
Participation rights and rules of evidence may vary, for example. Dutch administrative law does not provide for special procedures such as inquiries or hearings, like those in the United Kingdom, but specific Dutch administrative authorities do have the power to institute an inquiry at companies, for example, for the purposes of supervision and enforcement.
In addition, in various fields of administrative law public participation meetings are held, which enable interested parties to express their views on the draft of a Janna Breslin Nude order. Cases of this kind frequently involve the application of the public preparatory procedure of Division 3. Rules and principles concerning administrative transparency and access to data retained by public authorities are partly governed by procedural law.
These concern the rules on the right of inspection of documents relating to the case in hand retained by the administrative authority and the requirement of Peyrebeille with respect to the allocation of scarce public-law permits.
A doubtful case concerns the general regulation of access to data retained by the government. This right to accessibility of government information is enshrined in a separate statute, the Public Access Act Wet openbaarheid van bestuur. At the same time, this distinction is the subject of a broad debate and there are plans to incorporate the Public Access Act into the GALA. By and large, procedural law concerning administrative authorities in the Netherlands has a broad scope of application.
In fact, it encompasses all procedural rules that regulate acts and omissions of public authorities, even if Dutch administrative law regulates orders in particular, especially individual decisions.
With such decisions, Youporn Handjob are based on a public-law power, the government takes a unilateral measure that affects the legal position of the relevant party. There are quite a few subjects that might be considered part of administrative law in other legal systems, but that are regarded primarily as being of a constitutional nature in the Netherlands.
These include the rules governing the election and appointment of specific officials and the organization of referenda. In general, the rules concerning the structure and operation of administrative authorities are part of constitutional law, such as the voting system used within administrative authorities of municipalities, provinces and regional water authorities.
These constitutional rules often display Ymre Schuurmans diversity, because they do not fall under the GALA and the Constitution regulates hardly any practical matters.
On the other hand, administrative courts may impose a sanction on non-compliance with rules of this kind if such non-compliance has resulted in an unlawful order. In section 4, it will be made clear that the GALA relates mainly Gestionnaire De Risques Assurance orders, specifically individual decisions.
The same difference exists at the decentralized level, when it comes to the preparation of generally binding regulations by municipal and provincial councils, inter alia. For example, under Article 2under a of the GALA, the primary legislator is not regarded as an administrative authority and hence, it does not come within the scope of the GALA. Under Article GALA, no appeal lies to the administrative court against rules.
The Dutch legal system is not familiar with a concept like the notice-and-comment rulemaking procedure or with other modes of formal participation rights of individuals in rulemaking. This kind of system is based on consensus, which may be very hard to reach within coalitions and should not be too easily overturned.
That said, interested parties may appeal against their individual implementing decision and then put forward that the decision is based on unlawful rules or they may appeal to a civil law court. However, such an appeal is hardly ever successful, as the courts generally pay great deference to choices made by rulemakers.
Even though there is a clear boundary between procedures resulting in rules and administrative procedures resulting in individual orders, it should be noted that administrative authorities may, in a substantial number Micro Roulette cases, choose to achieve policy objectives through generally binding regulations or through orders.
For example, the chemical industry may be required to achieve an emission reduction through a system of permits to which conditions are attached by means of individual ordersbut administrative authorities may also choose to issue a generally Ymre Schuurmans rule forcing all companies involved to achieve an emission reduction. However that may be, this shows that the boundary between the two procedures is fuzzy in practice.
In addition, there are subjects that are associated with civil law rather than administrative law. The provisions concerning agreements, including the rules governing the formation and execution of contracts, are laid down in the Dutch Civil Code. This code does not contain separate provisions on contracts with the government.
The civil court may, however, flesh out the open standards defined in the general rules by applying administrative standards, such as the general principles of sound administration. Like disputes concerning acts without an intended legal effect deeds of fact or feitelijk handelendisputes about such contracts are submitted to the civil court.
It is definitely possible to draw a boundary between administrative and judicial procedures. This boundary lies where an interested party files a notice of appeal with the administrative court against an order made by an administrative authority. By now 9 x See footnote 4. Courts are designated as such in the Judiciary Organization Act Wet op de Rechterlijke Organisatiethe Administrative Jurisdiction Trade and Industry Act Wet bestuursrechtspraak bedrijfsorganisatiethe Council of State Act Wet op de Raad van State and the Social Security Appeals Act Beroepswetin conjunction with the General Administrative Law Act, and must satisfy strict requirements in terms of independency, inter alia.
This does not apply to administrative authorities. As a general rule interested parties are required to follow a preliminary administrative procedure usually an objection procedure before they can take their case against an order to court. This procedure allows the individual to explain why he or she disagrees with the order, after which the administrative authority considers its order once again. Officially, this preliminary procedure has two objectives: extended decision-making and legal protection.
In practice, the emphasis often lies on the latter element, which gives the objection procedure a quasi-judicial nature. The Netherlands does not have specialist tribunals, such as those in the United Kingdom, but these objection procedures often involve committees composed partly of content experts.
The importance of administrative procedure law in judicial proceedings can hardly be overstretched.