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  | - INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)
- 1. Main dates in the evolution of the review of administrative acts
The history of administrative justice in the Netherlands is described below. As views differed on an acceptable division of duties between the judiciary and the administration, the question of whether it was desirable and practicable for independent courts to have general jurisdiction to hear disputes between citizens and the authorities about the latter’s acts and actions remained disputed in the Netherlands until well into the 20th century. This led to the adoption of ad hoc solutions in cases where the need for judicial review prevailed. The evolution of administrative justice has therefore been marked by a piecemeal division of jurisdiction between administrative and judicial bodies that resulted in a veritable jungle of review procedures.
The solution chosen in many areas of administrative law was administrative review (administratief beroep), i.e. a right to apply to a different (higher) administrative authority for review of a decision. This review authority could substitute the attacked decision by its own decision. Often there was also a further right to appeal to the Crown, in which case the final decision rested with the Crown. To ensure the independence of the ruling in such cases, the Crown based its decision on an opinion submitted by the Administrative Disputes Division of the Council of State (Afdeling geschillen van bestuur van de Raad van State) following an adversarial procedure as regulated in the Council of State Act of 1861. If the Crown decided not to follow the opinion, it had to comply with special rules (justice retenue). "Contrary decisions", as they were called, were rather rare. Less than 0,5%.
After the principle of independent administrative justice (i.e. judicial review of administrative acts and actions) was accepted in 1887 – in article 154 of the Constitution of those days – proposals were made for the introduction of a general system of administrative justice, but they were never implemented. Instead, provisions were introduced piecemeal in fields where administrative justice was accepted on account of the highly binding nature of specific statutory rules and there was no disagreement about the authority to be given jurisdiction (the usually specialised nature of the authority helped to inspire confidence). This compartmentalisation of administrative justice was strengthened by – and itself in turn strengthened – the sector-oriented development of substantive administrative law, in which general norms and doctrines played little part.
The decisions of specialised tribunals established to hear applications for review of tax cases evolved into a separate tax jurisdiction, which was later assigned to the Courts of Appeal (gerechtshoven) and the Court of Cassation (Hoge Raad (1)).
The administration of justice in social security cases was originally assigned to specialised tribunals, which were later integrated by the Social Security Appeals Act of 1955 statute into tribunals spread throughout the Netherlands. The appeal court has been the Higher Social Security Court (Centrale Raad van Beroep (2)) since 1902. Social assistance disputes were not added to the jurisdiction of this court until 1 January 1994. Before that date appeal in such disputes lay to the Crown, since 1863 the Administrative Disputes Division of the Council of State.
Cases involving the legal position of public servants were heard at first instance by public service tribunals, which had the same president as the social security tribunals. Appeal lay to the CRvB. The Food Supply Tribunal was established for economic administrative law in 1941. When the regulatory industrial organisations were established under public law in the 1950s its jurisdiction was transferred to the Administrative Court for Trade and Industry (College van Beroep voor het bedrijfsleven (3)). The core function of the CBb has now changed from the supervision of regulatory industrial organisations to regulatory and subsidy law and disciplinary law.
Just as in the tax field, administrative jurisdiction in other areas of the law was sometimes assigned to the ordinary courts (i.e. the district courts and courts of appeal and the Court of Cassation as provided for in the Judiciary (Organisation) Act since 1838).
As time passed, the willingness to accept the many gaps left by this fragmentation diminished. This was why general, supplementary administrative jurisdiction was created in the 1960s and 1970s. Although this filled the gaps (once again within certain limits), it left the existing jurisdictions intact.
The Administrative Decisions (Review) Act (Wet beroep administratieve beschikkingen) of 1963 still conferred jurisdiction on the Crown. However, the Administrative Decisions Appeals Act of 1975 gave jurisdiction to hear appeals to the Judicial Division of the Council of State, which was established at that time. Like the Administrative Decisions (Review) Act, the Administrative Decisions Appeals Act related only to individual administrative decisions (beschikkingen). From 1975 onwards it became customary in new statutes to take for granted the jurisdiction created under the Administrative Decisions Appeals Act by not making any special provision for judicial review (4). As a result, the Judicial Division quickly evolved into the general administrative court for the Netherlands.
The General Administrative Law Act (5) entered into force on 1 January 1994. This statute regulates the law of administrative procedure and, to an increasing extent, substantive general administrative law. The system described at I has applied since then.
(1) Hereinafter: HR.
(2) Hereinafter: CRvB.
(3) Hereinafter: CBb.
(4) This historical survey is taken from M. Schreuder-Vlasblom, Rechtsbescherming en bestuurlijke voorprocedure (Judicial review and administrative preprocedure)), Deventer, 2003, pp. 9-13.
(5) Algemene wet bestuursrecht; hereinafter: Awb. - 2. Purpose of the review of administrative acts
The review by the courts of administrative acts and actions is intended to protect the rights of the appellants against the administration. The administrative authorities must comply with both statute law and unwritten law. However, the review of the acts and actions of administrative authorities is not intended as a general review of the lawful functioning of the administration. - 3. Definition of an administrative authority
"Administrative authority" means (a) an organ of a legal person that has been established under public law or (e.g. the State, province, municipalities, water-board districts)(b) another person or body which is invested with any public authority (article 1:1, subsection 1 Awb).(6)
(6)Article 1:1 Awb:
1. Administrative authority means:
(a) an organ of a legal entity which has been established under public law, or
(b) another person or body which is invested with any public authority.
2. The following authorities, persons and bodies are not deemed to be administrative authorities:
(a) the legislature;
(b) the First and Second Chambers and the Joint Session of the States General;
(c) independent authorities established by law and charged with the administration of justice, and the Council for the Judiciary;
(d) the Council of State and its divisions;
(e) the General Chamber of Audit;
(f) the National Ombudsman and Deputy Ombudsmen;
(g) the chairmen, members, registrars and secretaries of the authorities referred to at (b) to (f), the Procurator General, the Deputy Procurator General and the Advocates General to the Court of Cassation, and committees composed of members of the authorities referred to at (b) to (f).
3. An authority, person or body excluded under subarticle 2 is nonetheless deemed to be an administrative authority in so far as it makes orders or performs acts in relation to a public servant not appointed for life as referred to in 1 of the Central and Local Government Personnel Act, his surviving relatives or his successors in title.
NB: Unless otherwise stated use was made of the English translation of the Awb as found on www.justi tie.nl/onderwerpen/wetgeving/awb/Wettekst_awb/.
- 4. Classification of administrative acts
In Dutch law decisions of administrative authorities are classified in accordance with the following schedule (7). Section 1:3 Awb defines the different external legal acts under public law (8).
CHART accompanying Question nr 4
Explanation of some terms used in the chart above
Generally binding regulations: lois au sens matériel edicted by administrative authorities.
Policy rules: in French circulaires.
Whether or not acts of administrative authorities can be challenged depends on their classification:
• decisions, plans and other orders of general scope can be challenged;
• generally binding regulations and policy rules cannot be challenged (article 8:2 Awb)(9);
• multilateral "orders" may be challenged only in accordance with the doctrine of "acte détachable".
(7) Van Wijk, Hoofdstukken van bestuursrecht, The Hague, 2008, p. 159.
(8) Article 1:3 Awb:
1. "Order" means a written decision of an administrative authority constituting a public law act.
2. "Administrative decision" means an order which is not of a general nature, including rejection of an application for such an order.
3. "Application" means a request by an interested party for an order.
4. "Policy rule" means an order, not being a generally binding regulation, which lays down a general rule for weighing interests, determining facts or interpreting statutory regulations in the exercise of a power of an administrative authority.
(9) Article 8:2 Awb:
No appeal may be lodged against:
(a) an order containing a generally binding regulation or a policy rule,
(b) an order repealing or laying down the entry into force of a generally binding regulation or policy rule,
(c) an order approving an order, containing a generally binding regulation or a policy rule or repealing or laying down the entry into force of a generally binding regulation or a policy rule.
- I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS
The expression "administrative acts" may be understood in accordance with Recommendation R (2004) 20 of the Committee of Ministers of the Council of Europe to Member States on judicial review of administrative acts, that is to say: "legal acts – both individual and normative – and physical acts of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons; situations of refusal to act or an omission to do so in cases where the administrative authority is under an obligation to implement a procedure following a request". It is also possible to refer to Resolution R (77) 31 on the protection of the individual in relation to the acts of administrative authorities.
Introductory explanation by the author
Although under "Recommendation R (2004) 20" "administrative acts" are, strictly speaking, taken to include physical acts of the administrative authority, I will confine my answers to "orders", i.e. legal acts (orders of general application, or decisions in individual cases) under public law (article 1:3, subsection 1 Awb). An "order" includes a refusal or failure to make an "order" (article 6:2 Awb)(10). In the great majority of cases action can or will be taken against the administration only when there is an express "order".
Only the civil courts are competent to hear cases involving loss or damage caused by physical acts of the administration. Where loss or damage is caused by orders, the administrative courts have had jurisdiction since the late 1990s as the result of several landmark judgments. For the time being, the civil courts also consider that they have jurisdiction.
Below I will set out the rules governing the law of administrative procedure as contained in the Awb. Occasionally I will also refer to provisions of specific statutes.
(10) Article 6:2 Awb:
For the purposes of statutory regulations governing objections and appeals, the following shall be equated with an order:
(a) a written refusal to make an order, and
(b) failure to make an order in due time. - A. COMPETENT BODIES
- 5. Non-judicial bodies competent to review administrative acts
The procedure starts with an objection which may (or must) be lodged with the administrative authority concerned. The order is then reconsidered in the light of the objection (article 7:11, subsection 1 Awb)(11). Where appropriate, the administrative authority may decide on the basis of the reconsideration to rescind the contested order and, in so far as necessary, make a new one replacing it (article 7:11, subsection 2 Awb).
In a limited number of cases no objection can be lodged, but application can be made to another higher administrative authority for review of the decision. Such an administrative authority has much the same options open to it as an authority hearing an objection (12)(13).
An interested party may apply to an independent court for judicial review of the decision taken in pursuance of the of objection or the application for administrative review. See answer to question 6.
(11) Article 7:11 Awb:
1. If the objection is admissible, the disputed order shall be reviewed on the basis thereof.
2. In so far as the review provides grounds for so doing, the administrative authority shall rescind the disputed order and, in so far as necessary, make a new order replacing it.
(12) Article 7:25 Awb:
In so far as the authority that rules on the administrative appeal considers that the appeal is admissible and well-founded, it shall annul the disputed order and, in so far as necessary, make a new order replacing it.
(13) No objection or application for administrative review can be lodged in cases concerning spatial planning or environmental law. In these matters a consultation exercise applies in which can be responded to a draft order. The final orders may be challenged before the administrative courts.
- 6. Organization of the court system and courts competent to hear disputes concerning acts of administration
At first instance
As a rule, the administrative law sectors of the 19 district courts are competent to hear disputes in all areas of administrative law (after completion of the objection and administrative review stages). However, there are two exceptions to this. The Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State (14)) administers justice at first and sole instance in cases concerning spatial planning law and environmental law (15). The CRvB administers justice at first and sole instance in cases relating to legislation concerning benefits for victims of war (16) and a special category pension cases. The CBb administers justice at first and sole instance in applications for the review of decisions of the Regulatory Industrial Organisation (Publiekrechtelijke Bedrijfsorganisatie (PBO)). Furthermore, the CBb has also the competence with regard to decisions based on various social-economic laws; sometimes in first and sole instance, sometimes in appeal.
On appeal
Appellate jurisdiction is divided among a number of courts:
(a) tax cases: the courts of appeal, with the possibility of cassation by the HR;
(b) social insurance cases and cases involving public servants (including the judiciary): CRvB;
(c) administrative law in economic cases: CBb; (17)
(d) other cases: ABRvS.
CHART accompanying Question nr 6
Administrative justice in the Netherlands
(14) Hereinafter: ABRvS.
(15) In 1994 the Administrative Jurisdiction Division replaced the existing Administrative Disputes Division (Afdeling Geschillen van Bestuur) and the Judicial Division (Afdeling Rechtspraak).
(16) The Victims of Persecution (1940-1945) Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945 (Wuv)), The Civilian war Victins (1940- 1945) Benefits Act (Wet uitkeringen burger-oorlogsslachtoffers 1940-1945 (Wubo)), the Act on the Special Pension for the Resistance in the former Dutch East Indies (Wet buitengewoon Indisch verzet (Wiv)) and the Special Pensions (1940-1945) Act (Wet buitengewoon pensioen 1940-1945 (WPB) ).
(17) In exceptional cases in categories (b) and (c), appeal in cassation may lie to the HR, namely for the interpretation of terms that also play a role in tax law or civil law (e.g. "pay" and "employee").
- B. RULES GOVERNING THE COMPETENT BODIES
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- 9. Internal organization of the ordinary courts competent to review administrative acts
Provisions governing the organisation of the administrative law sectors of the district courts are contained in the Judiciary (Organisation) Act. These provisions deal with the staff of the courts, the court management boards and the decision-making procedure. Section 20 provides that a district court has four sectors: administrative law, civil law, limited jurisdiction and criminal law. The administrative law sector has three-judge and single-judge divisions. The courts of appeal have civil law, criminal law and tax law sectors. Here too there are three-judge and single-judge divisions.
The HR has a civil law division, a criminal law division and a tax division. In exceptional cases in category (b) and (c), appeal in cassation may lie to the HR (tax division): see the answer to question 6. - 10. Internal organization of the administrative courts
(a) The ABRvS has four chambers: spatial planning, the environment, general appeals and appeals in asylum and immigration cases. Cases may be heard either by a three-judge chamber or by a judge sitting alone. The ABRvS had on 31 december 2008 a support staff of 177 lawyers (FTEs) (18).
(b) The CBb has two articles, each of which has more or less the same jurisdiction. Cases may be heard either by a three-judge chamber or by a judge sitting alone. The CBb had on 31 december 2008 a support staff of approximately 14 court legal assistants (gerechtsauditeurs) (FTEs).
(c) The CRvB has three articles, each of which consists of specialised, three- judge, chambers. The CRvB had on 31 december 2008 a support staff of 76,62 court legal assistants and judicial clerks (gerechtsauditeurs and gerechtssecretarissen) (FTEs).
(18)FTE: full time employment.
- D. JUDGES
- 11. Status of judges who review administrative acts
(a) The judges (rechters) of the district courts and the justices (raadsheren) of the courts of appeal and the HR are members of the ordinary judiciary. They may circulate among the different sectors of a court.
(b) The justices (raadsheren) of the CRvB and the CBb are also members of the ordinary judiciary.
(c) The members of the ABRvS form a separate category, which can in turn be divided into two subgroups:
(i)approximately 20 State Councillors, who are full-timers and whose duties involve both advising on legislation and administering justice (staatsraden in gewone dienst); they include 1-2 non-lawyers, who may, however, not act as presiding judge of a chamber or sit alone to hear cases;
(ii)approximately 35 Extraordinary Councillors, who are part-timers (50, 60 or 80%) and all of whom are lawyers (staatsraden in buitengewone dienst); in general, they do not have another separate permanent job (19).
The two categories of State Councillor have as administrative judges the same rights.
(19)With the exception of the presidents of the CRvB and the CBb and a member of the tax division of the HR, who, qualitate qua are attached to the ABRvS and who do not have a time limited part-time job with the ABRvS. - 12. Recruitment of judges in charge of review of administrative acts
Judges of the district courts are selected by a committee for the recruitment of members of the judiciary (this is different at the ABRvS). They are nominated by the Court for life. As regards the training of these judges, see the answer to question 13.
Judges of the district courts can apply for the position of justice at the courts of appeal, the CRvB or the CBb. Generally speaking, only administrative judges are eligible for appointment to appellate administrative courts. By the same token, administrative judges without experience of civil or criminal law are not usually eligible for appointment as justices of a court of appeal. Hitherto, tax judges at the courts of appeal could not be recruited from the ranks of district court judges as the tax sectors at these district courts have only recently been instituted.
Not all of the justices of the CRvB are appointed from the district court judges; the others are lawyers who have previously held a different kind of job, for example in public administration or at a university. Most of the justices of the CBb previously were judges at the district courts.
The State Councillors also have a varied background. They include quite a lot of former professors but also 2-3 former politicians. Furthermore former judges, civil servants and the occasional ex-attorney or ex-mayor. They are appointed for life. - 13. Professional training of judges
In general, there are two different courses: the first is a 6-year postgraduate course for lawyers who do not have at least six years’ experience as a legal practitioner (the RAIO course) (20) and the second is a shorter course for lawyers who do have this experience (the RIO course) (21).
The 6-year course covers all aspects of court work, including that of the prosecutors. During the course the trainees also spend a one-year placement in a legal profession other than the judiciary. Trainees on the shorter course usually spend their placements in two sectors of the court in question. Trainees of both categories are supervised in presiding over court hearings and drafting judgments.
(20)RAIO: rechterlijk ambtenaar in opleiding.
(21)RIO: rechter in opleiding. - 14. Promotion of judges
Members of the judiciary are promoted only if they choose to apply for promotion and obtain the requisite qualifications. There are no senior judicial posts that carry a form of automatic promotion. Judges can be appointed as vice-president of a court. In general there is one vice-president who is responsible for managerial and organisational duties and another who is responsible for duties of a more legally substantive nature. - 15. Professional mobility of judges
There is no established policy of professional mobility. Some judges remain a permanent member of "their" court and others switch to another court (whether or not higher) court within the ordinary court system (22); some members of the judiciary also switch from the ordinary courts to an administrative court or vice versa. There are no fixed career patterns in the Dutch system.
(22) District courts, courts of appeal and the HR.
- E. ROLE OF THE COMPETENT BODIES
- 16. Available kinds of recourse against administrative acts
(a) Application to the administrative courts is in principle an application for annulment. Its purpose is to obtain the full or partial annulment of an order of an administrative authority. If an order is annulled on a procedural ground, the administrative authority will generally have to make a new one (23). If the order is annulled on a substantive ground, there are basically two alternatives (24):
(1) the administrative authority still has some latitude to make a substantially new order; in such a case, the administrative court simply quashes the existing one (25);
(2) there is no longer any latitude since it is clear what the new order must be; in such a case, the court itself makes the new order to replace the one it has annulled (26).
The final decision in cases involving damages, administrative fines and tax cases is generally taken by the court itself.
(b) In all cases the administrative court reviews all aspects of the contested order to determine its legality (i.e. lack of competence or breach of statute law or unwritten law). In so far as the statute allows the administration latitude to decide, the administrative court merely checks that this power has not been exercised in a manifestly unreasonable manner.
(c) The relationship between the appeal court and the court of first instance can be disregarded. It should, however, be noted that an appeal generally involves all aspects of the judgment (i.e. issues of fact and law). Only in immigration and asylum appeals is the scope of review by the court severely restricted.
(23) If it is a procedural defect which is not to the detriment of any interested party, the administrative judge may himself rectify the defect (article 6:22 Awb).
Article 6:22 Awb:
An order against which an objection has been made or an appeal has been lodged may be upheld by the authority deciding on the objection or appeal, despite an infringement of a procedural rule, if it is found that the infringement has not prejudiced the interests of the interested parties.
(24) Article 8:72 Awb: 1. If the district court rules the appeal well-founded, it shall annul all or part of the disputed order.
2. If an order or part of an order is annulled, the legal consequences of the order or the annulled part thereof shall be void.
3. The district court may determine that all or part of the legal consequences of the annulled order or the annulled part thereof shall be allowed to stand.
4. If the district court rules the appeal well-founded, it may direct the administrative authority to make a new order or to perform another act in accordance with its judgment, or it may determine that its judgment shall take the place of the annulled order or the annulled part thereof.
5. The district court may set the administrative authority a time limit for issuing a new order or performing another act.
6. The district court may determine that a provisional remedy shall cease to have effect at a later time than the time of judgment.
7. The district court may determine that, as long as the administrative authority does not comply with a judgment, an astreinte to be fixed in the judgment shall be payable by the legal entity designated by the district court to a party designated by the district court. Articles 611a to 611i of the Code of Civil Procedure shall apply mutatis mutandis.
(25) An administrative court may set the administration a time-limit for this purpose, if necessary supported by a penalty payment for failure to comply. See article 8:72, subarticles 5 and 7, Awb.
(26) To this extent the Netherlands has a mixed form of recours en annulation and plein recours; it is sometimes qualified as recours en annulation enrichi. - 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty
No. - 18. Advisory functions of the competent bodies
Only the Council of State has a role in addition to its judicial function. This additional role involves providing advice to the legislator on statutes and to the Crown on orders in council (article 73, paragraph 1 of the Constitution).
The Council of State has to advise on the following legislative matters:
• parliamentary bills (projets de loi);
• draft orders in council (27);
• bills proposed by members of the House of Representatives (propositions de loi);
• ratification of treaties;
• expropriation orders (but not on the amount of compensation).
In addition, the Council of State or one of its divisions may be heard on such matters as the government considers necessary. Examples are government policy documents, government positions, amendments to legislation and also the national budget (article 15a of the Council of State Act).
(27) This also applies to draft Kingdom statutes (Rijkswet) and Kingdom orders in council (Algemene maatregel van rijksbestuur) , i.e. legislation which, put simply, applies not only to the Netherlands in Europe but also to the Caribbean parts of the Kingdom (i.e. the Netherlands Antilles and Aruba). - 19. Organization of the judicial and advisory functions of the competent bodies
All ordinary State Councillors sit both on the full Council (consultative function) and in the ABRvS. A State Councillor who has been involved in giving an opinion on the lawfulness or constitutionality of a statute or order in council may not subsequently sit as a member of the ABRvS to try a case in which this same matter is raised afresh (28). Although the Council of State Act does not yet contain a specific provision to this effect, this is established practice (29). In fact, "same case" situations of this kind are extremely uncommon.
As the Administrative Jurisdiction Division consists not only of ordinary State Councillors (who also advise on legislation) but also of Extraordinary State Councillors (who act only in a judicial capacity), a chamber can always be formed which is "Procola & Kleyn-proof".
(28) See the judgments of the ECtHR in the cases of Procola (judgment no. 14570/89), Kleyn and others (judgment no. 39343/98, 39651/98, 43147/98, 46664/99) and Sacilor-Lormines (judgment no. 65411/01).
(29) A draft act is pending at the First Chamber of Parliament intended to separate further the judicial and the advisory function of the Council of State.
- F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES
- 20. Role of the supreme courts in ensuring the uniform application and interpretation of law
The first form of harmonisation and cooperation between the highest appeal courts in the field of administrative law is the informal consultation that takes place in various forums established for this purpose (of the external presidents’ consultations) consisting of the President of the ABRvS, the Presidents of the CBb and the CRvB and the Vice-Presidents of the civil law and tax divisions of the HR. At staff level there is consultation between the liaison officers.
In 2004 the government announced the introduction of a bill to establish an Administrative Law Uniform Application Chamber (gemeenschappelijke rechtseenheidskamer) spanning the ABRvS, the CBb and the CRvB. A chamber of this kind would make it possible, where necessary, to give well-publicised guiding judgments on general questions of administrative law and administrative procedure. A proposal of this kind is expected for 2009-2010.
In practice, the highest administrative courts have proved well able to prevent major divergences in the case law.
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
See the answer to question 5. - 22. Right to bring a case before the court
Every interested party may lodge an application for review or appeal to an administrative court. An interested party is a person whose interests are directly affected by an order (article 1:2, subsection 1 Awb) (30). According to the case law such a person must have an:
- own
- objectively definable
- current
- personal interest
- and be directly affected
by the contested order.
This is broader than the German case law but narrower than the French.
An interested party may be either a natural or a legal person. Administrative authorities too may qualify as interested parties (article 1:2, subsection 2 Awb). The interests entrusted to them are deemed to be their own interests. General and collective interests may only be defended by legal entities (article 1:2, subsection 3 Awb).
It is quite possible in administrative law proceedings for both the appellant and the respondent to be part of the administration.
Administrative authorities can also lodge an appeal themselves against an order of other administrative authorities in case they are an interested party.
(30) Article 1:2b Awb:
1. Interested party means a person whose interest is directly affected by an order.
2. As regards administrative authorities, the interests entrusted to them are deemed to be their interests.
3. As regards legal entities, their interests are deemed to include the general and collective interests which they particularly represent in accordance with their objects and as evidenced by their actual activities. - 23. Admissibility conditions
Before the substance of an application for review or appeal can be assessed by an administrative court, the requirements for admissibility must have been satisfied. For example:
• the application for review or appeal must have been lodged in time (article 6:7 and article 6:24, subsection 1 Awb) (31)(32);
• the court registry fee must have been paid in time (article 8:41, subsection 1 Awb in the case of review and the provisions of specific statutes in the case of review and appeal) (33);
• the notice of appeal must contain (a) a description of the decision or judgment that is challenged by the application for review or appeal respectively and (b) the grounds for the application for review or appeal (article 6:5, subsection 1, opening words and (c) and (d) and article 6:24, subsection 1 Awb) (34).
The admissibility requirements are the same for all categories of appellants.
If an admissibility requirement (other than submission within the time-limit) has not been fulfilled the appellant must be given the opportunity to rectify the default. If he fails to do so or to do so in time, the application for review or appeal can be declared inadmissible (35).
If a time limit is not observed, the application will not be declared inadmissible if the appellant cannot reasonably be held to have been in default (article 6:11 and article 6:24, subsection 1 Awb) (36).
An interested party can only lodge an appeal against an order which affects him directly. In other words only a person whose interests are directly affected by an order qualifies as an interested party. See also the answer to question 22.
(31) Article 6:7 Awb:
The time limit for submitting a notice of objection or appeal shall be six weeks.
(32) Article 6:24 Awb:
1. With the exception of article 6:12, this division shall apply mutatis mutandis if an appeal to a higher court or an appeal in cassation may be lodged.
2. Notwithstanding article 6:4, an appeal in cassation shall be instituted by submitting a notice of appeal with the court against whose judgment the appeal is brought.
(33) Article 8:41 Awb:
1. A registry fee shall be levied by the registrar on the submittant of the notice of appeal. In the case of a notice of appeal concerning two or more related orders, or is submitted by two or more submittants against the same order, one registry fee shall be payable. In this case the registry fee shall be the highest amount due under subarticle 3 for one of the orders or from one of the submittants respectively.
2. The registrar shall inform the submittant of the notice of appeal that the registry fee is payable and inform him that the amount due must be credited to the account of the district court or paid to the registry within four weeks of the date on which the communication is sent. If the amount has not been credited or paid within this period, the appeal shall be ruled inadmissible, unless the submittant cannot reasonably be held to have been in default.
3. The registry fee shall be:
(a) € 41 if the appeal has been lodged by a natural person against:
(1°) an order made under a statutory regulation included in parts B and C, 1 to 25 and 29 of the Schedule to the Appeals Act,
(2°) an order regarding unemployment or sickness benefit made in respect of a public servant as such as referred to in article 1 of the Central and Local Government Personnel Act, or a conscript as such as referred to in article 1 (b) of the Conscripts (Legal Status) Act, their surviving relatives or their successors-in-title, or
(3°) an order regarding benefit for permanent disability under a statutory regulation under which the natural person is insured for a state disability pension in respect of his disability, or an order made under article P9 of the Public Servants' Superannuation Act,
(4°) an order made under the Rent Rebate Act,
(b) € 150 if the appeal has been lodged by a natural person against an order other than an order as referred to at (a), unless provided otherwise by act of Parliament, and
(c) € 297 if the appeal has been lodged by another than a natural person. 4. If the appeal is withdrawn because the administrative authority has wholly or partly satisfied the wishes of the submittant of the notice of appeal, the legal entity in question shall reimburse him the registry fee paid by him. In other cases where the appeal is withdrawn the legal entity in question may reimburse him all or part of the registry fee.
5. The amounts referred to in subarticle 3 may be altered by order in council in so far as this is warranted by the cost-of-living index.
(34) Article 6:5 Awb:
1. The notice of objection or appeal shall be signed and shall contain at least:
(a) the name and the address of the submittant;
(b) the date;
(c) a description of the order against which the objection or appeal is addressed;
(d) the grounds for the objection or appeal.
2. A copy of the order to which the dispute relates shall be submitted with the notice of appeal if possible.
3. If the notice of objection or appeal is in a foreign language and a translation is necessary for the objection or appeal to be properly dealt with, the submittant shall arrange for a translation.
Explanation:
By 'submittant' is meant the one who submits the notice of objection or appeal. The words petitioner and applicant cannot be used as these words have a specific meaning in this act of Parliament.
(35) Article 6:6 Awb:
If article 6:5 or any other requirement laid down by act of Parliament for the objection or appeal to be considered has not been complied with, the objection or appeal may be ruled inadmissible, provided the submittant has had the opportunity to remedy the omission within a time limit set for this purpose.
(36) Article 6:11 Awb: A notice of objection or appeal submitted after the end of the time limit shall not be ruled inadmissible on this ground if it cannot reasonably be held that the submittant was in default. - 24. Time limits to apply to the courts
The usual time-limit for submission of an application for review or appeal is six weeks after notification of the order (article 6:7 Awb) or the judgment (article 6:7 and article 6:24, subsection 1 Awb). An order of an administrative authority and a judgment of an administrative court always contain an explanation of the remedies available and the relevant time-limits (articles 3:45 and 8:77, subsection 1, opening words and (f) Awb) (37)(38).
This time-limit cannot be extended. However, a pro forma application is possible: after an application for review or appeal has been lodged on grounds to be stated later, the court specifies a period within such grounds must be lodged.
In a small number of cases there is a deviation of the period of six weeks, for example, two or four weeks in the Elections Act (Kieswet) and the Aliensact 2000 (Vreemdelingenwet 2000).
If an order is challenged on the ground that it has not been made in time ("administrative silence"), the objection or application for review is not subject to a time-limit (article 6:12, subsection 1 Awb) (39). However, the objection or application for review is declared inadmissible if it has been lodged unreasonably late (article 6:12, subsection 3 Awb).
(37) Article 3:45 Awb:
1. If an objection may be made or an appeal may be lodged against an order, this shall be stated when notifying and giving communication of the order.
2. At the same time it shall be stated by whom, within what time limit and with which authority an objection may be made or an appeal may be lodged.
(38) Article 8:77 Awb:
1. The written judgment shall state:
(a) the names of the parties and their representatives or legal representatives,
(b) the grounds for the decision,
(c) the decision,
(d) the name or names of the judge or judges hearing the case,
(e) the date on which the decision was delivered,
(f) who is entitled to a remedy, within what time limit and to which administrative district court.
2. If the district court rules the appeal well-founded, the judgment shall state what written or unwritten rule of law or general principle of law is considered to have been infringed.
3. The judgment shall be signed by the presiding judge of the three-judge article and the registrar. If the presiding judge or registrar is unable to sign it, this shall be stated in the judgment.
(39) Article 6:12 Awb:
1. If the notice of objection or appeal is brought against failure to make an order in due time it shall not be subject to any time limit.
2. A notice of objection or appeal may be submitted at such time as the administrative authority fails to make an order in due time.
3. The objection or appeal shall be ruled inadmissible if the notice of objection or appeal is submitted unreasonably late. - 25. Administrative acts excluded from judicial review
No application for review may be lodged against (a) orders containing a generally binding regulation or a policy rule (article 8:2 Awb); (b) an order preparing a legal act under private law (article 8:3 Awb) (40); (c) an order belonging to any of the varied categories specified in article 8:4 Awb (41); (d) any order on the negative list referred to in article 8:5 Awb (42). This list consists mainly of orders which are closely connected with other irrevocable orders against which a separate right of review would result in unnecessary proceedings, and various orders in respect of which the possibility of review by the administrative judge was not considered expedient for political or other reasons.
The Dutch administrative law knows no such a thing as a théorie de l'acte de gouvernement (political question theory).
(40) Article 8:3 Awb:
No appeal may be lodged against an order in preparation of a legal act under private law.
(41) Article 8:4 Awb:
No appeal may be lodged against an order:
(a) suspending or annulling an order of another administrative authority,
(b) based on a power conferred, or obligation imposed, under any statutory regulation in case of exceptional circumstances, made in these circumstances,
(c) made on the basis of a statutory regulation designed to protect the military interests of the Kingdom or its allies,
(d) appointing a person, unless an appeal is lodged by a public servant as such as referred to in article 1 of the Central and Local Government Personnel Act, or a conscript as such as referred to in article 1, (b) of the Conscripts (Legal Status) Act, their surviving relatives or their successors-in-title,
(e) assessing the knowledge or ability of a candidate or pupil examined on the matter or tested in any other way, or laying down tasks, assessment standards or rules for such examination or testing,
(f) a technical assessment of a vehicle or aircraft, or a measuring device, part thereof or auxiliary device therefore,
(g) made under a statutory regulation concerning taxation or the levying of a contribution, or tax replacing a contribution, under the National Insurance (Financing) Act,
(h) on the numbering of lists of candidates, the validity of electoral alliances, the voting procedure, the counting of votes and the establishment of results in elections of members of representative bodies, and the declaration of election to vacant seats, or
(i) made on the basis of a statutory regulation concerning compulsory military service, in so far as medical examination, re-examination, drafting, actual service, long furlough or discharge is concerned, unless the order relates to voluntary enlistment, extension of actual service or breadwinner’s allowance, or the order was made on the basis of the Armed Forces (Reserves) Act 1985.
(42) Article 8:5 Awb:
No appeal may be lodged against an order made on the basis of a statutory regulation listed in the schedule to this act. - 26. Screening procedures
Applications for judicial review and appeal are in administrative law not subject to separate screening procedures. The Court of Cassation (Hoge Raad), however, has some kind of screeningprocedure, also in tax cases, by requiring the use of grounds for appeal in cassation (cassatiemiddelen) which have to meet strict formal requirements. - 27. Form of application
An application for review or appeal does not have to fulfil specific presentation requirements. In practice, it may even be lodged by fax. - 28. Possibility of bringing proceedings via information technologies
A draft act has been sent to the Parliament. This act will complete the Awb with rules about e-contact with the administrative judge (Wet elektronisch verkeer met de bestuursrechter). In the meantime administrative judges are experimenting with e-files. - 29. Court fees
With a few exceptions, a registry fee is charged for lodging an application for judicial review or appeal. For example, the charge for an application lodged by a natural person with the ABRvS is € 150 in the case of review or € 223 in the case of appeal. If the application is lodged by a legal person, the charges are doubled. - 30. Compulsory representation
The assistance of legal counsel or an advocate is not compulsory, but is fairly common in practice. This makes little difference to the processing of the application. The assistance of a lawyer/attorney (advocaat) is only compulsory in appeal in cassation to the HR, when there is a hearing. - 31. Legal aid
An interested party may be assigned legal counsel or an advocate under the legal aid system if he or she is unable to pay the costs of administrative law proceedings. Income and capital tests are applied. An assignment is usually issued, on request, by one of the five independent Legal Aid Councils (Raden voor rechtsbijstand). In a few cases regulated by statute, counsel may be assigned under the legal aid system by a court. A person refused an assignment may challenge the decision before the administrative courts. - 32. Fine for abusive or unjustified applications
Only in cases of manifestly unreasonable use of procedural law (kennelijk onredelijk gebruik van procesrecht) is it possible that an appellant whose appeal has been considered well-founded, is ordered to pay the costs of the proceedings incurred by the opposing party. This is very seldom.
- B. MAIN TRIAL
- 33. Fundamental principles of the main trial
The main trial hearing is governed by the fundamental principle that both parties should be heard (audi alteram partem). This derives from articles 8:42 and 8:43 Awb (43)(44). Section 8:42 provides that an administrative authority may lodge a defence to the application for judicial review. Section 8:43 makes provision for the submission of a written reply and rejoinder. In addition, each of the parties may also address the court at the hearing. It should be noted that the basic principle is that each case should be dealt with orally at a hearing. Under article 8:54 Awb, judgment can be given without a hearing only if the district court manifestly lacks jurisdiction or the application for judicial review is manifestly inadmissible, manifestly unfounded or manifestly well-founded (45). This provision is applicable mutatis mutandis on appeal (46). In practice, the hearing is of great importance. At the hearing parties are actively interrogated by the judges. These statutory provisions also give effect to the principle of equality of arms.
The hearing is held in public (article 8:62, subsection 1 Awb) (47). However, the district court may determine that the court hearing will be held wholly or partly in camera in the interests of public order or morals, in the interests of State security, in the interests of safeguarding the interests of minors or protecting the privacy of the parties or if a public hearing would seriously prejudice the proper administration of justice (article 8:62, subsection 2 Awb). The judgment is given in writing (article 8:66, subsection 1 Awb) and only rarely in open court, and states the grounds for the decision (article 8:77, subsection 1, opening words and (b) Awb) (48). If the judgment finds that the application for review is well-founded, it states what written or unwritten rule of law or general principle of law is considered to have been infringed (article 8:77, subsection 2 Awb). Judgments are i.a. published on the internet (www.rechtspraak.nl).
With the exception of the subject-matter of question 34, the influence of article 6 of the European Convention on Human Rights (49) is reflected above all in the abolition in 1994 of the appeal to the Crown (het administratieve beroep op de Kroon) (see above, question 1) (50), the broader scope for parties to comment on reports prepared by experts appointed by the court (51), and a more strict application of the time limits for the duration of judicial procedures. The cassation procedure in tax cases is the only procedure before an administrative court in which an advocate general submits an opinion before the court gives judgment (52). Parties are given the opportunity to comment on this opinion before the HR gives judgment.
(43) Article 8:42 Awb:
1. Within four weeks of the date on which the notice of appeal is sent to the administrative authority the latter shall send the documents relating to the case to the district court and lodge a defence.
2. The district court may extend the time limit referred to in subarticle 1.
(44) Article 8:43 Awb:
1. The district court may give the submittant of the notice of appeal the opportunity to submit a written reply, in which case the administrative authority shall be given the opportunity to submit a written rejoinder. The district court shall fix the time limits for reply and rejoinder.
2. The district court shall give parties other than those referred to in subarticle 1 the opportunity at least once to state their views on the case in writing, for which it shall set a time limit.
(45) Article 8:54 Awb:
1. Until the parties have been invited to appear in court, the district court may close the inquiry if continuation thereof is not necessary because:
(a) the district court manifestly lacks jurisdiction,
(b) the appeal is manifestly inadmissible,
(c) the appeal is manifestly unfounded, or
(d) the appeal is manifestly well-founded.
2. If judgment is given with application of subarticle 1, the attention of the parties shall be drawn to article 8:55, subarticle 1.
(46) The situation is different only on appeal in asylum and immigration cases. Section 8:54, subarticle 2 Awb and article 8:55 Awb shall not apply (article 88, subarticle 1 Aliens Act 2000 (Vreemdelingenwet 2000)).
(47) Article 8:62 Awb:
1. The hearing shall be held in public.
2. The district court may determine that the hearing shall take place wholly or partly behind closed doors:
(a) in the interests of public order or public morality,
(b) in the interests of State security,
(c) if this is necessary to safeguard the interests of minors or protect the privacy of the parties,
(d) if a public hearing would seriously prejudice the proper administration of justice.
(48) Article 8:66 Awb:
1. Unless judgment is given orally, the district court shall give judgment in writing within six weeks of closing the hearing.
2. In special circumstances the district court may extend this time limit for a maximum of six weeks.
3. The parties shall be informed of such extension.
(49) Hereinafter: ECHR.
(50) As a consequence of the judgment of the ECtHR in the Benthem case (no. 8848/80).
(51) Cf ECtHR 18 March 1997, Mantovanelli (no. 8/1996/627/810).
(52) A draft act is expected in 2009-2010 which should introduce advocates general at the ABRvS, CRvB and CBb. - 34. Judicial impartiality
The independence of the judiciary is guaranteed by article 117 of the Constitution (53). A crucial factor is that all judges are appointed for life. Members of the judiciary are elevated not by the government but by the independent Council for the Judiciary (Raad voor de Rechtspraak). Also appointed for life are the ordinary and extraordinary State Councillors and members of the ABRvS (articles 3 and 4 of the Council of State Act). Subsequently they do not make a career anymore. It is the president of the ABRvS who appoints the presidents of the four chambers.
Judicial impartiality is also guaranteed by the following articles of the Awb. If there are facts or circumstances that could prejudice his impartiality any judge may recuse himself from hearing the case (article 8:19, subsection 1 Awb) (54). Section 8:15 Awb provides that on the grounds of these facts or circumstances a party may request the disqualification of any of the judges hearing a case (55)(56). A judge whose disqualification has been requested may acquiesce in the disqualification (article 8:17 Awb) (57). Otherwise the disqualification request must be heard by a disqualification panel (article 8:18 Awb) (58).
Finally, state councillors are subject to the rule (not yet enacted) that a person who has helped to draft an opinion on the constitutionality or legality of a statutory provision may not sit as a member of the ABRvS trying the "same case". See above at question 19.
(53) Article 117 Awb:
1. Members of the judiciary responsible for the administration of justice and the Procurator General at the Court of Cassation shall be appointed for life by Royal Decree.
2. Such persons shall cease to hold office on resignation or on attaining an age to be determined bij Act of Parliament.
3. In cases laid down by Act of Parliament such persons may be suspended or dismissed by a court that is part of the judiciary and designated by Act of Parliament.
4. Their legal stutus shall in other respects be regulated by Act of Parliament
(54) Article 8:19 Awb:
1. Any of the judges dealing with a case may ask to be excused from dealing with it on the ground of facts or circumstances as referred to in article 8:15.
2. The request shall be in writing, stating the reasons. After the start of the hearing, or after the start of the hearing of parties or witnesses in the preliminary inquiry, the request may also be made orally.
3. If the request is made in court, the hearing shall be adjourned.
(55) Article 8:15 Awb:
At the request of a party, any of the judges dealing with a case may be challenged on the ground of facts or circumstances which could prejudice the judicial impartiality.
(56) Article 8:16 Awb:
1. The request shall be made as soon as the facts or circumstances become known to the petitioner.
2. The request shall be made in writing, stating the grounds. After the start of the hearing, or after the start of the hearing of parties or witnesses in the preliminary inquiry, the request may also be made orally.
3. All the facts and circumstances must be presented together.
4. A subsequent challenge to the same judge shall not be dealt with unless facts or circumstances are adduced which did not become known to the petitioner until after the previous request.
5. If the request is made in court, the hearing shall be adjourned.
(57) Article 8:17 Awb:
A judge who has been challenged may acquiesce in the challenge.
(58) Article 8:18 Awb:
1. The challenge shall be dealt with as soon as possible by a three-judge article of which the judge who has been challenged is not a member.
2. The petitioner and the judge who has been challenged shall be given the opportunity to be heard. The district court may determine, on its own initiative or at the request of the petitioner or the judge who has been challenged, that they will not be heard in each other's presence.
3. The district court shall decide as soon as possible. The decision shall state the reasons and shall be communicated without delay to the petitioner, the other parties and the judge who has been challenged.
4. In the event of abuse, the district court may order that no subsequent requests shall be dealt with. This shall be stated in the decision.
5. The decision is final. - 35. Possibility to rely on the new legal arguments in the course of proceedings
Legal arguments that have not been included in the notice of objection or the application for administrative review may be raised in the application for judicial review. New legal grounds may also be raised on appeal. This right is subject to two limits: (a) the arguments must relate to a part of the order that was previously disputed (this can be inferred from article 6:13 Awb) (59), and (b) an important new argument may not be raised at the hearing or at an unreasonably late date prior to the hearing. The courts have ruled that this would be contrary to the rules of good procedure.
(59) Article 6:13 Awb:
No appeal may be lodged before an administrative judge by an interested party if he reasonably may be considered at fault in not having stated his views (zienswijzen) as referred to in article 3:15, not having made an objection or not having lodged an administrative appeal against the original order. - 36. Persons allowed to intervene during the main hearing
During the main hearing the parties may address the court. They can also lodge written documents. The parties are in any event the appellant or appellants and the administrative authority (60) whose order is the subject of the application. If the appellant is challenging an order addressed to a third party (e.g. a permit holder or person awarded a grant), the third party is also party to the proceedings. Other interested parties who have lodged an objection at an earlier stage or have applied for judicial review are also heard as a party at their request (61).
Witnesses and experts can also play a role. And the court may appoint interpreters (article 8:60, subsection 1 Awb) (62).
(60) In the Dutch law of administrative procedure only administrative authorities are parties for the administration, not the legal person to which they belong (state, municipality, etc.).
(61) Article 8:26 Awb:
1. Until the end of the hearing the district court may allow interested parties to be joined as parties in the proceedings on its own initiative, at the request of a party or at their own request.
2. If the district court suspects that there are unknown interested parties, it may announce in the Government Gazette that a case is pending before it. The announcement may also be made by other means in addition to the announcement in the Government Gazette.
(62) Article 8:60 Awb:
1. The district court may summon witnesses and appoint experts and interpreters.
2. A witness who has been summoned, or an expert or interpreter who has accepted his appointment and been summoned by the district court, shall comply with the summons. Articles 198 and 204 of the Code of Civil Procedure shall apply mutatis mutandis. The summons to the expert shall specify the assignment to be carried out, the time and place at which it is to be carried out and the consequences of non-appearance.
3. The parties shall be informed as far as possible in the invitation referred to in article 8:56 of the names and places of residence of the witnesses and experts who have been summoned and the facts to which the hearing relates or, as the case may be, the assignment which is to be carried out.
4. The parties may bring with them witnesses and experts, or summon them by registered mail or bailiff's communication, provided the district court and the other parties are informed not later than a week before the date of the hearing, stating the names and places of residence. The attention of the parties shall be drawn to this right in the invitation referred to in article 8:56. - 37. Existence and role of the representative of the State (“ministère public”) in administrative cases
There is no such body. - 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"
At the moment the function of advocate general exists only at the HR, also in its tax division. This official is independent and impartial and gives a legal opinion after analysing the legal arguments. See also the answer to question 33. - 39. Termination of court proceedings before the final judgment
Proceedings can end prematurely if the application for judicial review or appeal is withdrawn before the court has given judgment. The death of a party may, but need not, signify the end of the proceedings. If the order does not relate solely to the deceased, the proceedings may be continued by his heirs either in the name of the deceased or in their own name. - 40. Role of the court registry in serving procedural documents
This question relates to what has been stated at the beginning of answer 33. The main trial hearing is governed by the fundamental principle that both parties should be heard (audi alteram partem) something which on a practical level is overseen by the court registry. (63)(64)
(63) Article 8:42 Awb:
1. Within four weeks of the date on which the notice of appeal is sent to the administrative authority the latter shall send the documents relating to the case to the district court and lodge a defence.
2. The district court may extend the time limit referred to in subarticle 1.
(64) Article 8:43 Awb:
1. The district court may give the submittant of the notice of appeal the opportunity to submit a written reply, in which case the administrative authority shall be given the opportunity to submit a written rejoinder. The district court shall fix the time limits for reply and rejoinder.
2. The district court shall give parties other than those referred to in subarticle 1 the opportunity at least once to state their views on the case in writing, for which it shall set a time limit. - 41. Duty to provide evidence
At first instance, the parties are responsible for providing evidence of their submissions. If, however, the court considers it necessary to hear a witness or expert in order to ascertain the facts, it may call a witness or appoint an expert (article 8:60, subsection 1 Awb). This may also occur during the preliminary examination (articles 8:46 and 8:47 Awb) (65)(66). It is mainly in matters of spatial planning or environmental law but also on medical matters that the court (e.g. the ABRvS or the CBb) itself appoints an independent expert.
(65) Article 8:46 Awb:
1. The district court may summon witnesses.
2. The district court shall inform the parties at least one week in advance of the names and places of residence of the witnesses, the time and place at which they are to be heard and the facts to which the hearing will relate.
3. Article 205, subarticles 1, 2 and 3, first sentence, and article 206, subarticles 1 to 3 and 5 of the Code of Civil Procedure shall apply mutatis mutandis.
(66) Article 8:47 Awb:
1. The district court may appoint an expert to conduct an investigation.
2. The assignment to be carried out and the time limit referred to in subarticle 4 shall be stated when the appointment is made.
3. The parties shall be informed of the intention to appoint an expert as referred to in subarticle 1. The district court may give the parties the opportunity to make known their wishes concerning the investigation in writing within such time limit as it may set.
4. The district court shall set a time limit for the expert to issue his written report of the investigation to the district court.
5. The parties may state their views on the report in writing within four weeks of the date on which the report is sent to them.
6. The district court may extend the time limit referred to in subarticle 5. - 42. Form of the hearing
The hearing is conducted by a judge sitting singly or by the presiding judge of a three-judge chamber. It takes place in public (article 8:62, subsection 1 Awb). However, the court may determine that the trial will take place wholly or partly in camera in the interests of public order or morals, in the interests of State security, in the interests of safeguarding the interests of minors or protecting the privacy of the parties or if a public hearing would seriously prejudice the proper administration of justice (article 8:62, subsection 2 Awb). See also the answer to question 33. In practice this hardly ever occurs.
A party may be represented or assisted by counsel (article 8:24 Awb) (67). After the parties have addressed the court, they are questioned in person by the court. Witnesses and experts may be brought by the parties or summoned to attend the hearing (article 8:60, subsection 4 and article 8:63, subsections 2 and 3 Awb) (68). They may also be questioned under oath, but this occurs relatively infrequently. In practice, the parties on more than one occasion bring with them other people who wish to address the court. Witnesses and experts may also be summoned or appointed by the administrative court (article 8:60, subsection 1 Awb). See also the answer to question 41.
Let me add that the hearing takes place in a rather informal atmosphere.
(67) Article 8:24 Awb:
1. The parties may be assisted or represented by a legal representative.
2. The district court may require a legal representative to produce a written authorisation.
3. Subarticle 2 shall not apply to attorneys-at-law and procurators.
(68) Article 8:63 Awb:
1. Article 205, subarticles 2 and 3, first sentence of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) shall apply mutatis mutandis to the hearing of witnesses and experts. Article 205, subarticle 1 of the Code of Civil Procedure shall apply mutatis mutandis to the hearing of witnesses.
2. The district court may decide not to hear witnesses and experts brought in or summoned by a party if it considers that this testimony cannot reasonably be expected to contribute to the assessment of the case.
3. If a witness or an expert summoned by a party has not appeared, the district court may summon him, in which case the district court shall adjourn the hearing. - 43. Judicial deliberation
Where a case is heard by a panel of three judges, the deliberations in chambers are conducted by the presiding judge. The practice is fairly informal. In many quarters it is the custom for the youngest judge to open the deliberations. In the ABRvS one of the two members of the chamber is always designated as rapporteur, in other words he opens the questioning at the hearing and gives his opinion first during the deliberations in chambers. The clerk of the court also may take part in the deliberations in chambers.
No independent opinion is given at the hearing by an advocate general or member of the court (commissaire du gouvernement). The advocate general at the HR (tax cases) submits a written opinion on which the parties can comment in writing. He does not take part in the deliberations in chambers (nor has he ever done). See also the answer to question 33.
- C. JUDGMENT
- 44. Grounds for the judgment
The grounds for judgments are usually explained in some detail (article 8:77, subsection 1, opening words and (b) Awb). Normally, each point raised in an argument is dealt with in the judgment. If there are different arguments for quashing an order, all of them are usually dealt with in order to ensure that when the new order is made it will not be the subject of unnecessary challenges. The court generally tries to give a convincing judgment. - 45. Applicable national and international legal norms
All these legal norms (written law and unwritten legal principles) are important. The following international rules are of particular importance: article 6 Convention for the Protection of Human Rights, Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ EC 1985, L 175/40), Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ EC 1992, L 206/7), Council Directive 75/442/EEC of 15 July 1975 on waste (OJ EC 1975, L 194/39), Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ EC 1003, L 30/1), Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (OJ EC 1996, L 296/55) and the Treaty of Aarhus 1998 (Convention on Access to Information, Public Information on Decision Making and Access to Justice in Environmental Matters). - 46. Criteria and methods of judicial review
The legality test in the narrow sense is carried out strictly (incompatibility with written law or a general principle of law). If the law grants an administrative authority a discretionary power, the court merely assesses whether the authority exercised its powers reasonably (i.e. no manifestly unreasonable assessment of interests or manifestly incorrect classification). The extent of the judicial review depends on the degree of discretion granted by the legislator to the administrative authority. Powers to impose administrative sanctions of a punitive nature are never supposed to be discretionary (article 6 ECHR).
NB: Often an administrative authority that has a discretionary power has adopted policy rules (beleidsregels) for this purpose. The court checks i.a. whether these policy rules have been correctly applied.
The HR does not decide on the facts. The HR annuls acts, judgments, rulings and orders on the grounds of a) failure to observe procedural requirements, where non-observance explicitly entails nullity or nullity follows from the nature of the procedural requirement that has not been observed, of b) misapplication of the law, with the exception of the law of foreign States (article 79, subsection 1, Judiciary (Organisation) Act). - 47. Distribution of legal costs
The administrative court has exclusive jurisdiction to order a party to bear the costs incurred by another party in connection with the institution of certain forms of legal redress. An exhaustive fixed-penalty system is applied for this purpose (69). This provides a contribution towards certain costs. A natural person can be ordered to bear the costs only if he has made manifestly unreasonable use of his procedural rights.
In practice, a person other than an administrative authority is hardly ever ordered to bear the costs of the other party. To this extent an appellant runs little risk in lodging an application for judicial review or appeal. If he loses, he need only bear his own costs.
(69) This is governed by the Legal Costs (Administrative Law) Decree (Besluit proceskosten bestuursrecht). - 48. Composition of the court (single judge or a panel)
Cases are normally heard by a single judge in the district courts. Complicated cases are referred to a panel of three judges.
The converse rule applies in the ABRvS, the CRvB and the CBb. In other words, appeals are generally heard by panels of three judges, unless the cases are less complicated. Cases heard by a single judge in the district court are generally also heard by a single judge on appeal.
The courts of appeal sit as panels of three judges, including in tax cases. The tax division of the HR generally sits as a panel of three judges (sometimes five). - 49. Dissenting opinions
Dutch procedural law makes no provision for the possibility of a dissenting or concurring opinion. - 50. Public pronouncement and notification of the judgment
Almost all judgments are given in writing (article 8:66, subsection 1 and article 8:77 Awb). If judgment is given orally, a record of it is drawn up and sent to the parties (article 8:67, subsections 1 and 3 Awb) (70). The decision in the judgment (i.e. not the grounds of the judgment) is given in open court and also sent to the parties (article 8:67, subsection 5 and article 8:78 Awb) (71). When a hearing is held the parties are informed when judgment will be given. This is no later than six weeks after the close of the hearing (article 8:66, subsection 1 Awb). This period may be extended in special circumstances (article 8:66, subsection 2 Awb). In practice the public pronouncement is a formality; it is considered of more importance that judgments are made available on the internet (through www.rechtspraak.nl).
(70) Article 8:67 Awb:
1. The district court may give judgment orally immediately after the closing of the hearing. Judgment may be deferred for a maximum of one week, in which case the parties shall be informed of the date of judgment.
2. The oral judgment shall consist of the decision and the grounds for the decision.
3. A record of the oral judgment shall be drawn up by the registrar.
4. It shall be signed by the presiding judge of the three-judge article and the registrar. If the presiding judge or the registrar is unable to sign it, this shall be stated in the record.
5. The district court shall deliver the decision referred to in subarticle 2 in public, in the presence of the registrar, stating who is entitled to appeal, within what time limit and to which administrative court.
6. The statement referred to in subarticle 5, second sentence, shall be included in the record.
(71) Article 8:78 Awb:
The district court shall deliver the decision referred to in article 8:77, subarticle 1 (c), in public, in the presence of the registrar.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
The judgment constitutes res judicata between the parties, i.e. only the parties are bound by the judgment of the administrative court. However, annulment of the order is binding erga omnes. The decision is always given in the case under consideration, although similar decisions will be given in similar cases of course. To this extent, a judgment also has a bearing on other cases. Dutch procedural law does not recognise the doctrine of stare decisis. When a highest judge changes his settled case law, he in general does that expressis verbis. - 52. Powers of the court in limiting the effects of judgment in time
A decision in a judgment can always be subject to a time limit. For example, a decision may be given until the time (in the future) when a fresh decision is given by the administrative authority on the objection. The court may also limit the retroactive effect of the annulment of a decision. This is long- established case law, which is not derived from international case law. - 53. Right to the execution of judgment
The execution of court judgments is guaranteed in the Netherlands. No special legal procedure is necessary for this purpose. The judgment – possibly certified by the court – constitutes an enforceable order. Administrative authorities, directed by an administrative court to make a fresh order will almost always follow the decision of the court; however, it is quite common for the fresh order to be made later than directed by the court. In certain circumstances, for example refusal of the administrative authority to make a fresh order, the administrative court may specify in its decision a time-limit within which the administrative authority must take some action, for example make a fresh order (article 8:72, subsection 5 Awb). The administrative court may rule that the administrative authority owes a penalty payment in the event of failure to make an order (article 8:72, subsection 7 Awb).
Under the law of civil procedure, a pecuniary penalty can be enforced without difficulty against a public body to which the administrative authority belongs (e.g. the State or a province or municipality). In practice, this is hardly ever necessary.
Public officials and individual administrators cannot be held individually liable in civil or criminal proceedings for failure to implement judgments. Nor is there felt to be a need for such liability. - 54. Recent efforts to reduce the length of court proceedings
All courts try to dispose of cases as quickly as possible. See also answer to question 73.
- E. REMEDIES
- 55. Sharing out of competencies between the lower courts and the supreme courts
Basically, first instance courts and appeal courts have the same functions in relation to the public administration. However, one difference is that on appeal the disputed order is only an indirect subject of dispute, since the appeal is directed against the judgment of the lower court.
As a court of cassation the HR receives only appeals in cassation (appeals on points of law). It does not decide on the facts. In tax cases, however, it can, if necessary, itself determine the amount of the tax to be paid. - 56. Recourse against judgments
Appeal lies against the judgment of a district court to the ABRvS, CRvB, CBb or to a court of appeal, depending on the field of law. Appeal in cassation against the judgment of a court of appeal lies to the HR. See also the answer to questions 6 and 55.
The written judgment that forms the subject of the appeal gives information about who is entitled to appeal, within what time limit, and to what administrative court appeal lies (article 8:77, subsection 1, opening words and (f) Awb).
For the manner of review, see the answers to questions 16 and 46.
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- 57. Existence of emergency and/or summary proceedings
The appellants can apply for interim relief (article 8:81 Awb) (72). Such an application is heard by a single judge of the court before which the application for judicial review or appeal is pending. If the dispute is still at the stage of objection or administrative review, application for interim relief may be made to the court to which application for judicial review can in due course be made. Interim relief can be granted if the appellant has an urgent interest (see the open phrasing of article 8:81, subsection 1 Awb, quoted in fn. 69). Where a court grants interim relief, it merely gives a provisional opinion on the legal issue or dispute submitted to it. Interim relief is often granted in a situation in which the disputed order will have irreversible consequences, for example the granting of a planning permission, the refusal of a permit for selling firework to the public during the last days of the year.
A judge who hears an application for interim relief should not, in principle, be involved in hearing the main proceedings. This is, however, not prohibited by law.
(72) Article 8:81 Awb:
1. If an appeal against an order has been lodged with the district court or, prior to a possible appeal to the district court, an objection has been made or an administrative appeal has been lodged, the president of the district court which has or may have jurisdiction in the proceedings on the merits may, on request, grant a provisional remedy where speed is of the essence because of the interests involved.
2. If an appeal has been lodged with the district court, the request for a provisional remedy may be made by a party in the proceedings on the merits.
3. If, prior to a possible appeal to the district court, an objection has been made or an administrative appeal has been lodged, a request for a provisional remedy may be made by the submittant of the notice of objection or appeal, or by the interested party if he is not entitled to lodge an administrative appeal.
4. Article 6:4, subarticle 3 and articles 6:5, 6:6, 6:14, 6:15, 6:17 and 6:21 Awb shall apply mutatis mutandis. The submittant of the request who has made an objection or lodged an appeal shall at the same time submit a copy of the notice of objection or appeal.
5. If a request for a provisonal remedy is made after an objection has been made or an administrative appeal has been lodged and this objection or appeal has been decided on, before the request is dealt with in court, the submittant of the request may lodge an appeal to the district court. The request for a provisional remedy shall be equated with a request that is made during the appeal to the district court. [Subsection 5 was translated by JK.] - 58. Requests eligible for the emergency and/or summary proceedings
Interim relief may take any form. The law contains no restrictions. In the case of orders that impose a burden (e.g withdrawal of a grant or permit, an order backed by enforcement action by an administrative authority, an order backed by a penalty payment or an administrative fine) the appellant often requests a full or partial suspension. Similarly, a rule whose observance is a condition of a permit may be temporarily amended, suspended or temporarily expanded by way of interim relief. Where a permit for a one-off activity which must take place very shortly (e.g. a collection for a good cause on a particular day, a demonstration, or the sale of fireworks in the last few days of December) is refused, the court may sometimes give permission for the activity to take place after all.
Whether the court grants interim relief depends on various factors. For example whether it seems likely that all or part of the disputed order will be annulled and how the interests of the appellant in obtaining the requested remedy compare with those of the defendants. The interim relief should normally last until the decision in the main proceedings plus the appeal period of six weeks, but the court may specify a shorter period. If necessary, this can be decided upon within a few weeks.
No appeal lies against a ruling on an application for interim relief. However, an interested party can always apply for amendment or cancellation of the interim relief or submit a new application. - 59. Kinds of summary proceedings
Under the Awb there is just one form of summary jurisdiction, namely where the court manifestly lacks jurisdiction or the application is manifestly inadmissible, manifestly unfounded or manifestly well-founded (article 8:54 Awb). See the answer to question 33.
- III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES
- 60. Role of administrative authorities in the settlement of administrative disputes
There is a role at the stage of the objection procedure or, where provision is made for this by law, at the stage of administrative review. See the answer to question 5. - 61. Role of independent non-judicial bodies in the settlement of administrative disputes
Various administrative courts, including the environment chamber of the ABRvS, have tried resolving cases by mediation. Although not all final evaluations are yet known, mediation would seem to be an interesting alternative in some cases. At this moment the CRvB and the CBb have set up the necessary arrangements to make mediation possible.
The National ombudsman (Nationale Ombudsman) (and local ombudsmen) cannot settle disputes. Instead, the ombudsman investigates instances of maladministration and publishes his opinion and recommendations after first attempting mediation (quite often with success). Sometimes he intervenes successfully when an administrative authority is too late in replying to applications (this is unfortunately a persistent problem). - 62. Alternative dispute resolution
As regards mediation, see the answer to question 61. An advisory committee sometimes attempts to mediate during the objection stage, but this is not very common. Arbitration occurs in administrative disputes only in relation to claims for compensation.
- IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA
- A. FINANCIAL RESOURCES MADE AVAILABLE FOR THE REVIEW OF ADMINISTRATIVE ACTS
- 63. Proportion of the State budget allocated to the administration of justice
The answer to this question has been based on the report of the European Commission for the Efficiency of Justice (CEJEC) of 2006. The CEJEC uses a wide definition of 'administration of justice': "Total annual approved budget allocated to all courts" (meaning 1. courts, 2. public prosecution and 3. legal aid). According to the CEJEC 0,39% was spent in 2006 on administration of justice. The figures for the years 2007 and 2008 can be calculated by extrapolation but remain for both years 0,39%.
In 2006 according to the CEJEC 0,19% of the national budget of the Netherlands was set aside for the administration of justice in the strict sense (only courts). It is not possible to determine with certainty how much is intended for administrative justice. In 2002 the starting point was the trichotomy civil law, criminal law and administrative law, and the smallest part of the budget was earmarked for administrative law. One has to assume that in 2006 0,04% of the national budget was spent on administrative justice. The figures for the years 2007 and 2008 can be calculated by extrapolation but remain for both years also 0,4%.
According to the CEJEC in 2006 68% of the national budget of the Netherlands alloted for the administration of justice in the strict sense (only courts) was spent on personnel and 32% on material facilities such as accomodation. There is no reason to assume that that was very different in 2007 and 2008. - 64. Total number of magistrates and judges
On 31 December 2007 the number of judges working in all courts in the Netherlands totalled 2127 FTEs. - 65. Percentage of judges assigned to the review of administrative acts
Approximately 307,6 judges (FTEs) are assigned to the administrative law sectors of the district courts. At the tax divisions of the Courts of Appeal the figure is 37,3 FTE.
On 31 December 2008 there were 32 judges (FTEs) on the ABRvS (73). This includes both those hearing cases at first instance and those hearing appeals. The CBb had on the same date 16 justices charged with administrative justice. The CRvB had 60 justices and the HR has 14 justices on 31 december 2008.
(73) Ordinary Councillors of State (gewone staatsraden) as well as Extraordinary Councillors (staatsraden in buitengewone dienst). - 66. Number of assistants of judges
The judges who work in the administrative law sectors of the district courts are helped by assistants (i.e. persons other than the court registry staff) during hearings and in drafting judgments. The support staff number numbered in 2004 381 lawyers (FTEs). On 31 December 2007 this number was 992,7 FTE but that included persons working at the court registries. In the courts of appeal this was on 31 december 2007 47,5 FTE, again including court registry staff.
The support staff for the ABRvS (first instance and appeal) consisted on 31 December 2008 177 lawyers (FTEs).
On 31 December 2008 14 FTE court legal assistants (gerechtsauditeurs) worked at the CBb. At the CRvB on the same date were working 76,62 FTE court legal assistants (gerechtsauditeurs) and judicial clerks (gerechtssecretarissen).
At the HR worked on 31 December 2008 12 FTE support lawyers. - 67. Documentary resources
All courts have libraries. These libraries stock the hard copy versions of the relevant literature (including standard textbooks and handbooks) and the main professional journals as well as law reports and legislation. - 68. Access to information technologies
All courts have online access to databases containing case law. These databases are maintained and updated by publishers and by the courts itself. CD-ROMs containing statute law and law reports are also available through the local network. There also exists 'Porta iuris' which includes 'Porta Europea', electronic portals which provide access to national and European case law and other relevant legal information.
The administrative law sectors of the district courts use various systems to register cases. These systems are maintained at national level. Law reports are also available online at www.rechtspraak.nl and www.raadvanstate.nl. These contain all judgments since the first months of 2000 and 1 April 2002 respectively.
There is also digital management information, which is thought for the most part to be developed and managed locally. Word and Justword are the programs used when drafting judgments. - 69. Websites of courts and other competent bodies
www.raadvanstate.nl is the website used by the Council of State to provide information to and communicate with the public. The other courts use the website at www.rechtspraak.nl for this purpose.
- B. OTHER STATISTICS
- 70. Number of new applications registered every year
New cases
| | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | | districts courts, administrative law sector (incl. asylum and immigration and tax cases) | 114.340 | unknown | 107.740 | unknown | 131.720 | 9.000 to 10.000 out of 131.720 | 145.230 | 9.000 to 10.000 out of 145.230 | 118.950 | 9.000 to 10.000 out of 118.950 | not available yet | not available yet | | CBb | 1.291 | 136 | 1.131 | 89 | 871 | 88 | 882 | 78 | 903 | 132 | 975 | 120 | | CRvB | 6.520 | unknown | 7.536 | unknown | 7.626 | unknown | 7.497 | unknown | 7.246 | unknown | 7.503 | unknown | | Courts of Appeal, tax law sector | 14.670 | unknown | 15.800 | unknown | 250 | included in the previous figure | 1.700 | included in the previous figure | 2.680 | included in the previous figure | not available yet | not available yet | | HR, tax division | 1.500 | not possible | 1.133 | not possible | 1.498 (incl. 78 CRvB-cases) | not possible | 922 (incl. 45 CRvB-cases) | not possible | 760 (incl. 33 CRvB-cases) | not possible | 749 (incl. 46 CRvB-cases) | not possible | | ABRvS, all chambers | 7.873 | 1.907 | 9.506 | 1.721 | 9.554 | 1.647 | 8.646 | 1.454 | 8.470 | 1.349 | 8.827 | 1.328 |
NB1: Only since 1 January 2005 do the district courts constitute the first instance in tax cases with a possibility of appeal to the Courts of Appeal. The figures for appeals still falling under the previous system dealt with by the Courts of Appeal are: 3.780 (2005), 430 (2006) and 510 (2007). - 71. Number of cases heard every year by the courts or other competent bodies
Number of hearings
| | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | | districts courts, administrative law sector | unknown | unknown | unknown | unknown | unknown | unknown | unknown | unknown | unknown | unknown | not available yet | not available yet | | CBb | 180 | 72 | 168 | 29 | 179 | 40 | 200 | 42 | 185 | 51 | 197 | 52 | | CRvB | 657 | included in the previous figure | 689 | included in the previous figure | 699 | 56 | 699 | 53 | 693 | 46 | 734 | 48 | | courts of appeal, tax law sector | unknown | unknown | unknown | unknown | unknown | unknown | unknown | unknown | unknown | unknown | not available yet | not available yet | | HR, tax division | a few times in a year | not possible | a few times in a year | not possible | 8 | not possible | 9 | not possible | 5 | not possible | 12 | not possible | | ABRvS, all chambers | 801 | 224 | 768 | 233 | 739 | 184 | 770 | 180 | 783 | 205 | 836 | 207 | - 72. Number of pending cases
Workload
| | 31 December 2003 | 31 December 2004 | 31 December 2005 | 31 December 2006 | 31 December 2007 | 31 December 2008 | | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | | districts courts, administrative law sector (incl. asylum and immigration and tax law cases) | inflow: 114.340 outflow: 135.000 | included in the figures of the main proceedings | inflow: 107.740 outflow: 135.170 | included in the figures of the main proceedings | inflow: 131.720 outflow: 131.110 | included in the figures of the main proceedings | inflow: 145.230 outflow: 139.110 | included in the figures of the main proceedings | inflow: 118.950 outflow: 130.460 | included in the figures of the main proceedings | not available yet | not available yet | | CBb | 1.361 | 20 | 1.312 | 14 | 1.139 | 7 | 994 | 12 | 978 | 11 | 1126 | 19 | | CRvB | 6.520 | included in the previous figure | 7.417 | included in the previous figure | 10.182 | 18 | 9.739 | 23 | 9.547 | 6 | 9.641 | 9 | | Courts of Appeal, tax law sector | unknown | unknown | unknown | unknown | inflow: 250 outflow: 20 | included in the figures of the main proceedings | inflow: 1.700 outflow: 520 | included in the figures of the main proceedings | inflow: 2.680 outflow: 1.440 | included in the figures of the main proceedings | not available yet | not available yet | | HR, tax division | 1.687 | not possible | 1.583 | not possible | 1.869 | not possible | 1.676 | not possible | 1.527 | not possible | 1.238 | not possible | | ABRvS, all chambers | 2.972 | 210 | 3219 | 174 | 3.100 | 143 | 2.865 | 130 | 3.168 | 149 | 3.584 | 125 | - 73. Average time taken between the lodging of a claim and a judgment
Lead times in weeks
| | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | main proceedings | applications for interim relief | | districts courts, administrative law sector (without asylum and immigration and tax law cases) | 49,92 | unknown | 47,14 | unknown | 43 | 6 | 43 | 6 | 46 | 6 | not available yet | not available yet | | CBb | 47,28 | included in the previous figure | 46,42 | included in the previous figure | 66,71 | 7,71 | 69 | 5,43 | 72,86 | 4,43 | not available yet | not available yet | | CRvB | 103 | 6 | 101,28 | 6,71 | 54,75 | 6,34 | 50 | 6,96 | 51 | 7,44 | 54,29 | 7,54 | | courts of appeal, tax law sector | 73 | unknown | 75,57 | unknown | 81 | unknown | 111 | unknown | 118 | unknown | not available yet | not available yet | | HR, tax division | tax cases: 61,28
expropriation cases: 38,85
CRvB-cases: 53,57 | not possible | tax cases: 68,71
expropriation cases: 45,14
CRvB-cases: 68,28 | not possible | tax cases: 70,86
CRvB-cases: 45,86 | not possible | tax cases: 71,43
CRvB-cases: 40,43 | not possible | tax cases: 92,29
CRvB-cases: 111 | not possible | tax cases: 92,29
CRvB-cases: 75,86 | not possible | | ABRvS, all chambers | Chamber 1: 35
Chamber 2: 31
Chamber 3: 29
Chamber 4: 8 | Chamber 1: 13
Chamber 2: 7
Chamber 3: 4
Chamber 4: 2 | Chamber 1: 31
Chamber 2: 27
Chamber 3: 26
Chamber 4: 13 | Chamber 1: 12
Chamber 2: 7
Chamber 3: 5
Chamber 4: 3 | Chamber 1: 38
Chamber 2: 35
Chamber 3: 34
Chamber 4: 14 | Chamber 1: 11
Chamber 2: 7
Chamber 3: 5
Chamber 4: 2 | Chamber 1: 42
Chamber 2: 34
Chamber 3: 36
Chamber 4: 9 | Chamber 1: 10
Chamber 2: 6
Chamber 3: 5
Chamber 4: 2 | Chamber 1: 45
Chamber 2: 37
Chamber 3: 32
Chamber 4: 8 | Chamber 1: 10
Chamber 2: 8
Chamber 3: 5
Chamber 4: 3 | Chamber 1: 45
Chamber 2: 40
Chamber 3: 33
Chamber 4: 11 | Chamber 1: 20
Chamber 2: 7
Chamber 3: 5
Chamber 4: 2 |
The tax division of the HR does not deal anymore with expropriation cases since 2005. That has been taken over by the civil division.
ABRvS: Chamber 1: spatial planning (ruimtelijke ordening); Chamber 2: environment (milieu); Chamber 3: other appeals (overige beroepen); Chamber 4: appeals in asylum and immigration cases (beroepen in vreemdelingenzaken). The figures of the ABRvS refer to cases in which a hearing was held for Chambers 1, 2 and 3 and without a hearing for Chamber 4. - 74. Percentage and rate of the annulment of administrative acts decisions by the lower courts
In the years 1998 and 2000 at five out of the nineteen district courts, sectors administrative law, respectively 29,4% and 30,3% of the lodged appeals was granted (74). The same percentages can be expected for the years 2003 and 2004 given the minimal deviation of percentages between 1998 and 2000.
NB The figures here are not representative for tax law cases, where a two- layer system went into force on January 1st 2005 only. They are not representative either for the domain of and immigration cases, where this system was introduced in 2001 only.
In the year 2007 at the nineteen district courts, sectors administrative law, about 30% of the lodged appeals was, for a part or for the whole, granted. This figure includes tax law cases (75).
(74) This survey is taken from A.T. Marseille, Effectiviteit van de Bestuursrechtspraak (Efficiency of the administrative justice), Den Haag, 2004, p. 179. There were no other figures available.
(75) This percentage was provided for by the Council for the Judiciary. - 75. The volume of litigation per field
Per field (76)(77):
| | 2004 | 2005 | 2006 | 2007 | | Social security cases | 19.570 | 19.640 | 17.570 | 13.900 | | Public service cases | 3.140 | 2.910 | 2.670 | 2.530 | | Social assistance cases | 5.630 | 7.170 | 8.160 | 7.850 | | Other cases | 11.630 | 11.430 | 12.520 | 13.290 | | Applications for interim relief | 8.960 | 9.770 | 9.830 | 8.830 | | Asylum and immigration cases | 58.810 | 58.690 | 63.590 | 48.450 | | Tax law cases (first instance) | 15.800 | 25.900 | 31.330 | 24.620 |
(76) These figures were provided for by the Council for the Judiciary.
(77) This question was not answered correctly in the version of February 2006.
- C. ECONOMICS OF ADMINISTRATIVE JUSTICE
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