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A few characteristics of the Law of Administrative Procedure in the Netherlands

Oswald Jansen
1.

Introduction

One of the interesting features of the Dutch Law of Administrative Procedure is the
availability of a recent codification of general administrative law, which applies to all
administrative acts of all administrative authorities at all levels of government. The ambit of
application is similar to the Spanish Ley 30/1992/ 1 The provisions of the Dutch General
Administrative Law Act (GALA)2 play an important role in the regulation of the procedure of
administrative decision making in the Netherlands.
Another feature which is interesting from a comparative administrative law point of view is
the absence in the Dutch legal system of a constitutional court and review of the
constitutionnality of the legislation enacted by national parliaments. In short, the European
Convention on Human Rights (ECHR) plays an important role, as national courts can review
the conformity of legislation with the ECHR and, in many cases, the European Court of
Human Rights (ECtHR) fulfils the role of a constitutional court. Also, article 8:2 GALA limits
appeal against generally binding provisions (algemeen verbindende voorschriften) and policy
rules (beleidsregels), but this important provision does not limit the possibility of review of
these rules indirectly via the appeal against the acts based upon these general rules (exceptieve
toetsing).3
Dutch administrative law clearly has French roots, but the influence of German
Administrative Law has grown especially if we look at administrative decisionmaking. At the
same time ideas about red tape, regulation, participation and procedural justice from the
Anglo-Saxon part of the world have been very influential.
2. GALA and Dutch administrative law
As a coherent and consistent whole, Dutch administrative law is still comparatively new. The
first general codification of part of the general section of administrative law, the General
Administrative Law Act, is still very recent: it only came into force on 1 January 1994. 4 This
act applies to all administrative authorities at all governmental levels, independent
administrative authorities included.
1 See Michel Fromont, Droit administratif des tats europens, Paris: PUF 2006, p. 213.
2 Algemene wet bestuursrecht: Awb. An english translation of the 2009 version of this act can be found at
http://www.rijksoverheid.nl/documenten-en-publicaties/besluiten/2009/10/01/general-administrative-law-acttext-per-1-october-2009.html.

3 See Michel Fromont, Droit administratif des tats europens, Paris: PUF 2006, p. 279 and Van Wijk/
Konijnenbelt & Van Male, Hoofdstukken van Bestuursrecht, Deventer: Kluwer 2014, p. 569; Bestuursrecht 2
(2012), nr. 336, p. 136. See on this limitation of the right to appeal R.J.N. Schlssels en S.E. Zijlstra,
Bestuursrecht in de sociale rechtsstaat, p. 1251 and Ymre Schuurmans en Wim Voermans, Artikel 8:2 Awb: weg
ermee! In: Tom Barkhuysen e.a. (red.), Bestuursrecht harmoniseren: 15 jaar Awb, s-Gravenhage: BJu 2010, p.
809-831.

4 See Michel Fromont, Droit administratif des tats europens, Paris: PUF 2006, p. 22-23. See on the role of the
commission entrusted with the preperation of new parts of GALA, the Commissie wetgeving algemene regels
van bestuursrecht: T.C. Borman, Van Warb tot Awb: de invloed van de commissie-Scheltema op de Awb, in: T.
Barkhuysen e.a. (red.), Bestuursrecht harmoniseren: 15 jaar Awb, s-Gravenhage: BJu 2010, p. 23-40. The
contributions in this book can all be foudn at http://www.nall.nl/pagina/bibliotheek.

Numerous changes to Dutch legislation and regulations came into force in order to bring
about the intended harmonisation of the general part of the administrative law, a matter that
had been a subject of discussion for such a long time. 5 One of the most important objectives
of the General Administrative Law Act has therefore been the encouragement of uniformity in
administrative law.
The official aims of GALA are:
a. promoting unity within administrative law legislation;
b. systematizing and, where possible, simplifying administrative law legislation;
c. codifying developments in existing administrative case law;
d. making provision for developments regarding matters whose nature makes them
less suitable for arrangement in special legislation.6
Although the aspiration of the General Administrative Law Act for harmonization may be
described as high, this is certainly not the case for the desire for codification. The
constitutional legislators instructions on the subject of codification are confined to
codification of the general rules on administrative law, in other words: to the general
codification of part of the general section of administrative law. The government took the size
of the project into consideration, when deciding to divide the General Administrative Law Act
into sections, called tranches. These tranches are like components in a building project,
which was started in 1983. This has resulted in four tranches that have since come into force;
the fourth, and most recent one, became effective as of 1 July 2009. Its introduction did not
mark the end of the building project: a general regulation of compensation for a loss and
damages for wrongful acts [Wet nadeelcompensatie en schadevergoeding bij onrechtmatige
besluiten] was enacted on 1 July 2013.7 As well as these more comprehensive elements, there
have been countless other minor amendments, draft bills on sections have been published and
other additions to the General Administrative Law Act are either under consideration or are in
preparation. It is often the case, as with so many construction projects, that additional work is
required during actual construction. There are countless changes which are too small to be put
into a tranche and which are added to the construction, the General Administrative Law Act.
5 One of the most important descriptions and analyses of the development of Dutch administrative law would
be J. van der Hoeven, De drie dimensies van het bestuursrecht. Ontstaan en vorming van het Nederlandse
algemene bestuursrecht, Alphen aan den Rijn: Samsom H.D. Tjeenk Willink 1989. An important role in the
process of structuring and ordering the general part of administrative law at the absence of any general
codification was played by the Vereniging voor Administratief Recht (VAR) which initiated a commission to
analyse Dutch administrative law to develop general principles of administrative law which could be suitable for
codification. The first edition of the report of this commissie inzake algemene bepalingen van administratief
recht was published in 1953, the last edition in 1984 (Algemene bepalingen van administratief recht, Rapport
van de commissie inzake algemene bepalingen van administratief recht, Alphen aan den Rijn: Samsom H.D.
Tjeenk Willink 1984. See for descriptions of the history of Dutch administrative law also: A.M. Donner,
Nederlands bestuursrecht. Algemeen deel, Alphen aan den Rijn: Samsom H.D. Tjeenk Willink 1987, p. 24-53;
Van Wijk/ Konijnenbelt & Van Male, Hoofdstukken van Bestuursrecht, Deventer: KLuwer 2014, p. 13-23; R.J.N.
Schlssels and S.E. Zijlstra, Bestuursrecht in de sociale rechtsstaat, Deventer: Kluwer 2010, p. 15-24. For a brief
description in english Tom Barkhuysen, Willemien den Ouden and Ymre Schuurmans, The law on
administrative procedures in the Netherlands, NALL June 2012.

6 Parliamentary Documents II 1988-1989, 21 221, nr. 3, p. 4.


7 Staatsblad 2013, 50 (see for the date of enactment Staatsblad 2013, 162). At the same day a very important act
to modify the provisions on administrative courts procedures was enacted (see Staatsblad 2012, 682 and
Staatsblad 2013, 258).

In addition, there are the changes arising from the evaluation of parts of the General
Administrative Law Act and other incidental changes.
If numerous specific acts, rules and regulations differ from the general rule provided for in
GALA by using different terms, systems or by providing for the same legal item or subject,
the harmonizing effect aimed for will not be achieved. For this reason, together with the
enactment of a part of GALA, bills and other regulations are enacted to bring acts, rules and
regulations in conformity with GALA.
In order to do justice to the desired harmonisation of Dutch administrative law, it is not
sufficient to allow amending legislation to come into force at the same time that an
amendment or alteration to General Administrative Law Act comes into force. After
legislation has become effective, it will still have to be in principle in accordance with the
relevant provisions of the General Administrative Law Act. In essence, the special legislator is
not allowed on the basis of the Instructions for regulation (Aanwijzingen voor de regelgeving)
to deviate from the General Administrative Law Act. In fact, to a certain extent, it is the case
here that general law takes precedence over special law.
The picture just outlined must, however, be filled out. The latitude allowed to the special
legislator and regulator to make their own regulations in the field of general administrative
law depends on the degree to which any law set down in the General Administrative Law Act
is compulsory. The greater the degree of compulsion the greater the harmonizing effect of the
provision will be. The General Administrative Law Act has four kinds of provision in this
respect: obligatory provisions, directory law (customary provisions), supplementary law
(safety net provisions) and facultative law. The lower regulator may not deviate from an
obligatory provision. Legislative policy has set down that the special legislator may not
deviate from this, unless there are particular reasons for doing so. Moreover the special
legislator must deviate explicitly and in a formulation as prescribed in the Instructions for
regulation (In afwijking van artikel ... Awb ...). The structure of the General Administrative
Law Act can be found in appendix I.
In short, GALA plays a crucial role in the Dutch law on administrative decision making. As I
will explain hereinafter the level of detail and the kind of provisions applicable depend on the
kind of administrative act involved.
3. The administrative act
In Dutch administrative law the Besluit (decision) plays a crucial role as a point of departure
of legal provisions regulating both administrative decisionmaking (mainly chapters 3 and 4
GALA) and legal protection (mainly article 8:1ff GALA). Besluit has the following definition
according to Article 1:3 GALA:
the written decision of an administrative authority constituting a public law juridical
act
Dutch legal scholarship distinguishes individual decisions and general decisions. The
individual decision, the beschikking, is a decision which does not have a general application
and it includes a refusal to grant an application for such a decision (article 1:3, second
paragraph, GALA). This is an explicit, real refusal. The fictitious decision upon an application
is called a niet tijdige beslissing (non timely decision or dcision en carence) which is not
considered to be a Besluit, but it is put on the same footing as Besluit in so far as the
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provisions on legal protection are concerned. The same applies to the explicit refusal to take
any decision. 8
The following decisions with a general application (Besluiten van algemene strekking: B.A.S.)
are distinguished in Dutch scholarship: generally binding regulation (algemeen verbindend
voorschrift: a.v.v.), policy rules (beleidsregel), plans, and a remaining categorie of
concretizing and other decisions with a general application (concretiserende besluiten van
algemene strekking). The character of the administrative act determines the applicability of
GALA provisions. As we will see below GALA not only provides for rules on the procedure
of the making of individual decisions (beschikkingen), but also on the making of other
administrative decisions such as policy rules (beleidsregels), generally binding regulations
(algemeen verbindende voorschriften) and even factual acts (feitelijke handelingen). The
provisions on individual decisions are highly detailed, whereas the rules on general decisions
and factual acts offer much more latitude. A good illustration of the subtle applicability of
GALA provisions offers the important Article 3:1 GALA, which reads as follows:
3:1 1. If a decision contains generally binding rules:
a. the provisions of division 3.2 apply only to the extent the nature of the decision permits;
b. the provisions of divisions 3.6 and 3.7 do not apply.
2. The provisions of divisions 3.2 to 3.4 apply mutatis mutandis to acts of administrative
authorities other than decisions to the extent the nature of the act permits.

Other features which are common in administrative law systems such as the written and the
external character of the decision also play some role in legal scholarship on the definition of
administrative decision (the besluitbegrip), but not too explicit. The requirement of a written
administrative decision means that the decision should be knowable from any written source. 9
The feature external character mainly plays a role in recognising generally binding
regulations from other general decisions.
The Dutch approach on the acts of administrative authorities can best be explained with the
following common schedule:

8 Article 6:2 GALA: For the purposes of the provisions of law on objections and appeals, the
following are equated with a decision: a. a written refusal to take a decision, and b. failure to
take a timely decision. As I wiull explain in another contribution in this book the Dutch
administrative law system on not deciding in time is rather complicated, and it consists not
only of the niet tijdige beslissing, but also of the positieve fictieve beschikking bij niet tijdig
beslissen, the fictitious positive decision resulting from deciding not in time, periodic penalty
payments and a special fast remedy.
9 See Van Wijk/ Konijnenbelt & Van Male 2014, p. 157.
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decisions of
administrative
authorities
(beslissingen van
bestuursorganen)

factual acts
(feitelijke
handelingen)

juridical acts
(rechtshandelinge
n)

civil law juridical


acts
(privaatrechtelijke
rechtshandelingen
)

public law juridical


acts
(publiekrechtelijke
rechtshandelingen
)

unwritten public
law juridical acts
(ongeschreven
publiekrechtelijke
rechtshandelingen
)

written public law juridical


acts = decisions (geschreven
publiekrechtelijke
rechtshandelingen =
besluiten)

Decisions with a
general
application
(besluiten van
algemene
strekking)

generally binding regulation


(algemeen verbindende
voorschriften)

Policy rules
(beleidsregels)

individual decision
(beschikking)

plans (plannen)

Concretizing and other


decisions with a general
application (concretiserende en
andere besluiten van algemene
strekking)

Literature on the understanding of the administrative decision, the besluitbegrip, is


abundant.10 For the purpose of this contribution the description of the Dutch administrative

10 Next to the manuals (Van Wijk/ Konijnenbelt & Van Male, p. 154-261; L.J.A. Damen et
al., Bestuursrecht 1, s0Gravenhage: Boom Juridische Uitgevers 2013; R.J.N. Schlssels, S.E.
Zijlstra, Bestuursrecht in de sociale rechtsstaat, Deventer: Kluwer 2010) I should also point at
F.J. van Ommeren and G.A. van der Veen, Het Awb-besluit, Nijmegen: Ars Aequi Libri 1999
and F.J. van Ommeren, P.J. Huisman, G. van der Veen, K.J. de Graaf, Het Besluit voorbij,
VAR Vereniging voor Bestuursrecht, s-Gravenhage: Boom Juridische Uitgevers 2013
(downloadable at: http://verenigingbestuursrecht.nl/wpcontent/uploads/2012/01/VAR_150.pdf).
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law system on administrative acts should be limited to a short explanation of the strategic
understanding of the definition of administrative decision (strategisch besluitbegrip).
Strategic interpretation of administrative decision (strategisch besluitbegrip)11
As the interpretation of the besluitbegrip determines access to an administrative court a
strategic interpretation of administrative decision has evolved resulting into certain decisions
to be considered or equated with a besluit. Two important examples are the formal
administrative opinion on the interpretation of a legal provision (bestuurlijk rechtsoordeel),
the notification that a certain transgression will not lead to an administrative sanction, will be
tolerated (gedoogverklaring) and the warning (waarschuwing). These examples all have in
common that they do not really aim at the creation of legal consequences (which is a
requirement to consider them a juridical act and therefore as a besluit). At the same time
administrative courts in complicated case law equate them with or consider them besluit to
offer an effective remedy or for reasons of procedural effectiveness. For similar reasons
administrative courts would sometimes asume civil law juridicial acts to be public law
juridical acts.
On 12 November 2014 the Staatsraad Advocaat-Generaal Widdershoven gave an important
opinion on the legal question under what circumstances different kinds of reactions by
administrative authorities on notifications (meldingen) should be considered a Besluit.12 This
conclusion will be followed by a equally important decision of the Grand Chamber of the
Administrative Law Division of the Council of State. The issue the Staatsraad AdvocaatGeneraal Widdershoven adresses illustrates the complex character of the definition of
administrative decision (besluit) and the consequences of the strategic interpretation for the
complexity of this legal term very well. In the words of Widdershoven:
Voor niet-ingewijden geldt verder het volgende caveat. Het begrip besluit is een juridischtechnisch begrip dat, ondanks zijn lange geschiedenis, aan de randen nog steeds veel discussie
veroorzaakt. Het is ook een complex begrip waarvan de inhoud wordt bepaald door abstracte
noties, die voor niet-ingewijden nauwelijks zijn te begrijpen. Als gevolg hiervan is ook deze
conclusie voor hen vermoedelijk een moeizaam stuk, ook al heb ik geprobeerd zo duidelijk
mogelijk te zijn. Vanwege het complexe karakter wordt in de literatuur al vele jaren
gediscussieerd over de vraag of het besluitbegrip wel geschikt is om, zoals hierna zal blijken,
bepalend te zijn voor de toegang tot de bestuursrechter.

For non-insiders the following caveat applies. The concept of besluit (administrative
decision) is a technical legal concept which still causes a lot of discussion at the
borders of its definition despite its long history. It is a complicated concept as well
which contents are determined by abstract notions which can barely be understood by
non-insiders. As a result from this my opinion will probably be difficult to make ones
way through, although I strained myself to be as clear as possible. As will be shown in
my opnion, due to the complex character of this notion legal scholarship is discussing
the question for years allready whether the notion of besluit is in fact suitable to
determine access to judicial review in administrative matters.
11 See Van Wijk/ Konijnenbelt & Van Male 2014, p. 158-170; Willem Konijnenbelt, Feitelijk
een beschikking, Gemeentestem, 6801, 2,
12 Conclusie Staatsraad Advocaat-Generaal Widdershoven 12 November 2014
ECLI:NL:RVS:2014:4116.
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4. The general regulation on administrative decision-making


4.1 Introduction
The regulation of administrative decisionmaking consists of a mixture of special and general
legislative provisions and unwritten legal principles.
In addition to general principles such as the principle of legal certainty
(rechtszekerheidsbeginsel) and the principle of equality (gelijkheidsbeginsel), administrative
law distinguishes the general principles of proper administration [Algemene beginselen van
behoorlijk bestuur].13 Examples of these principles are the principle of legitimate expectations
[vertrouwensbeginsel], the principle of due care [zorgvuldigheidsbeginsel], the principle of
proportionality [evenredigheidsbeginsel] and the principle to state reasons
[motiveringsbeginsel]. These principles are partly codified in GALA, and in so far as norms
that are derived from these principles are not codified these norms will apply as unwritten
law. European administrative law adds new interpretations to existing national principles,
such as the limited legal effect of the national principle of legitimate expectations in so far as
EU administrative decisionmaking by national administrative authorities is involved or the
addition to the substantive content of the national principle of due care of the EU principle of
loyal cooperation. The principle of transparency (transparantiebeginsel) and the principle of
defence (verdedigingsbeginsel) are clear examples of the introduction of new legal principles
in the national legal order due to the influence of EU law. Dutch literature as well as case law
on general principles of proper administration is extensive. 14 It is goes well beyond the
purpose of this contribution to elaborate on this case law and legal scholarship involved.
In Dutch legal scholarship a distinction is also made between general principles of proper
administration (algemene beginselen van behoorlijk bestuur) and general principles of proper
procedure [beginselen van behoorlijke rechtspleging).15 One of the principles of proper
procedure is the principle of defence.16

13 See for a short description Ren Seerden and Frits Stroink, Administrative Law in the
Netherlands, in: Rene Seerden and Frits Stroink (eds.), Administrative Law of the European
Union, its Member States and the United States, Intersentia, Antwerp 2002, pp. 145-197,
especially pp. 168-171.
14 An impressive example is P. Nicola, Beginselen van behoorlijk bestuur, Kluwer, Deventer
1990. More general descriptions can be found in: Van Wijk/Konijnenbelt & Van Male,
Hoofdstukken van bestuursrecht, Deventer: Kluwer 2014; R.J.N. Schlssels and S.E. Zijlstra,
Bestuursrecht in de sociale rechtsstaat, Kluwer, Deventer 2010, pp. 385-466; L.J.A. Damen et
al., Bestuursrecht I, Boom juridische uitgevers 2009, pp.295-435.
15 See for example B.W.N. de Waard, Beginselen van behoorlijke rechtspleging, met name in
het administratief procesrecht, W.E.J. Tjeenk Willink, Zwolle 1987; M. Schreuder-Vlasblom,
Rechtsbescherming en bestuurlijke voorprocedure, fourth edition, Kluwer, Deventer 2011.
16 See on this principle for example Oswald Jansen and Philip Langbroek (ed.), Defence
Rights during Administrative Investigations, Intersentia, Antwerpen Oxford 2007.
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The important and refined system of unwritten general principles of proper administration
(algemene beginselen van behoorlijk bestuur: a.b.b.b.) that existed before the enactment of
GALA has been codified only to a limited extent. Some principles have not been codified at
all, others just partly. This means that the body of principles has a supplementary role. This is
reflected in the obligation of the administrative judge to state the rules that are ground for
squashing the decision in Article 8:77, second paragraph, GALA which reads as follows:
If the judgment declares the appeal well-founded, it shall state which written or
unwritten rule of law or general principle of law is held to have been violated
Hence, as far as general regulation is concerned the General Administrative Law Acts plays an
important but not exclusive role.
Further, in order to find a rule on administrative decisionmaking one should consider that the
General Administrative Law Act is built up in layers. In order, for example, to give an answer
to the question whether an appeal can be lodged against a decision of an administrative body,
the relevant provisions of Chapters 8, 7 and 1 of the General Administrative Law Act have to
be consulted. For questions concerning subsidies the relevant provisions in Chapter 4 (Title
4.2 and 4.1), 3, 2 and 1 should be observed, for a decision establising a policy rule Chapter 4
(Title 4.3), as well as Chapters 3, 2 and 1 GALA. For questions concerning which norms
should be observed in a decision concerning an astreinte or an administrative fine from this
administrative authority, the relevant provisions in Chapters 5, 4, 3, 2 and 1 from this act
should be studied.
Due to the limited space this contribution offers to discuss the general GALA regulation on
administrative decisionmaking I will limit the analysis to participation and the right to be
heard, the duty to decide upon application and the duty to give reasons.
4.2 Participation and the right to be heard
In a way more or less comparable with other European administrative law systems Dutch
administrative law makes a distinction between the participation of interested parties in the
administrative decision making procedure and the participation of the general public. The
most specific regulation on participation with a clear legal position of the interested party
would be the right to be heard in the procedure to prepare an individual decision
(beschikking). The most general regulation on participation would be rules on inspraak (avoir
voix). I should clarify first that participatie in the Dutch language has a different meaning
than inspraak, although both are to be translated with participation. Inspraak should be
considered as one of the forms of participation on the ladder of citizen participation 17
(participatieladder).
Inspraak
The general provisions on the uniform public preparatory procedure (Article 3:10-3:18
GALA) form the most important general regulation on inspraak. These provisions apply if the
special act so determines, which was done in about 60 acts.18 Important examples can be
17 Sherry R. Arnstein, A Ladder of Citizen Participation, Journal of the American Planning
Association 1969, p. 216-224.
18 According to Van Wijk/ Konijnenbelt & Van Male 2014, p. 291.
8

found in planning law19 as well as in regulations of local authorities.20 The starting point of
these procedures is that this possibility is limited to interested parties (belanghebbende:
according to Article 1:2 GALA), but the special act or the administrative authority involved
may declare this possibility to participate open to other parties than the interested parties as
well according to article 3:15, second paragraph, GALA. In some cases anyone has the
possibility to participate by expressing their views on a draft decision.21 This procedure can be
applied to all kinds of decisions also the ones to execute factual acts (Article 3:1 GALA).
According to this formal participatory decision making procedure an administrative authority
will deposit a draft decision for inspection for at least six weeks (article 3:11 and 3:16
GALA), and before this deposit it will publish a notice of this draft decision in one or more
daily or weekly newspapers or free local papers or in another suitable manner, for example
electronically. Interested parties will have the opportunity to express their vies, and if the draft
decision is a decision on a application the applicant will have the opprotunity to comment on
these views. If the draft decision is a decision to amend or revoke another decision the person
addressed by the decision to be amended or revoked will have a similar possibility (Article
3:15 GALA).
An administrative authority can also decide to follow a procedure of inspraak if the act does
not provide for such a requirement.
Right to be heard
The scope of the right to be heard in Dutch administrative law depends on the phase in the
procedure and, at least in the procedure to prepare a decision, on the kind of decision. The
right to be heard is rather limited in the procedure preparing a decision in primo (see Articles
4:7 - 4:12 GALA). This choice of the legislator is closely related to the broader right to be
heard in the objection procedure (bezwaarschriftprocedure) (see Article 7:5 and 7:13 GALA).
The idea is that the objection procedure will be used to repair mistakes made in the first
phase. In the first phase, in particular, the function of the obligation to hear the citizen or the
interested party is not primarily intended to act as a right of defence but its function is more
that of the gathering of relevant facts.
In the decision-making procedure, administrative authorities have limited obligations to hear
interested parties. The obligation is seen as a specific requirement deriving from the principle
of due care (zorgvuldigheidsbeginsel). In other words, this obligation does not have the
purpose of guaranteeing a defence right. The main provisions are Articles 3:2 and division
4.1.2 GALA on the preparation of individual decisions. The key provisions of this division are
articles 4:7-4:9 GALA which read as follows:
4:7 1. Before refusing all or part of an application for an individual decision an administrative
authority shall give the applicant the opportunity to express his views if: a. the refusal would be

19 For example Article 3.8, 3.11, 3.24, 3.40, 4.2 and 4.4 Wet ruimtelijke ordening and Article
3.10 Wabo
20 See Article 150 Act on municipalities (Gemeentewet), article 147 Act on Provinces
(Provinciewet) and article 79 Act on Waterboards (Waterschapswet).
21 For example Article 12 Tracwet, and the regulation on inspraak many municipalities
have. I counted 252 regulations of municipalities (inspraakverordening), 10 of Provinces, 2 of
regional bodies of cooperation (gemeenschappelijke regelingen) and 20 of waterboards
(Waterschappen). See www.overheid.nl, Lokale wet- en regelgeving.
9

based on information about facts and interests concerning the applicant, and b. this information
differs from information the applicant has himself supplied on the matter.
2. Paragraph 1 does not apply if the difference from the application can only have minor
significance for the applicant.
4:8 1. Before an administrative authority takes a decision about which an interested party other
than the applicant can be expected to have reservations, it must give this interested party the
opportunity to express his views if: a. the decision would be based on information on facts and
interests concerning the interested party, and b. this information was not supplied for the purposes
of
the
decision
by
the
interested
party
himself.
2. Paragraph 1 does not apply if the interested party has failed to comply with a statutory obligation
to supply information.
4:9 For the purposes of articles 4:7 and 4:8 an interested party may, at his option, express his
views either in writing or orally.

If the administrative authority intends to impose a sanction or measure on someone, i.e. the
interested party, it will in most cases be obliged to give him or her the opportunity to state his
or her views. This obligation is related to the intention to make a decision, not on the outcome
of some investigation. This means that this obligation only applies towards the end of a
procedure. The citizen or the interested party has the right to choose whether he or she will be
heard orally or in writing (Article 4:9 GALA). It is up to the administrative authority to decide
what form the oral hearing will take. In some cases, a phone call may be sufficient. In others,
a formal hearing would be more appropriate.
As administrative fines are financial decisions in the sense of Article 4:12 GALA, an
exception is made to Division 4.1.2 in order to ensure that the interested party has a broader
right to be heard in procedures involving administrative fines. The obligation of
administrative authorities to hear an interested party when it intends to impose an
administrative fine is no longer only to promote a careful preparation of decisions, but is now
aimed at guaranteeing a defence right. This is to ensure that the procedure to impose
administrative fines will be in conformity with the demands of Article 6 ECHR.
In the primary phase, a right to receive minutes of the hearing does not exist. In most cases,
administrative authorities will refer to the hearing in the decision that has been taken after the
hearing. In any case, the citizen does not have the right to approve the minutes as it is the
administrative authority that is responsible for writing them. The letter of the interested party
or his or her representative to comment on the minutes of the hearing will be added to the
dossier. The administrative authority can, of course, change the minutes as a result of the
comments of the citizen, but he or she just does not have the right to approve them.
The right to be heard is broader and stronger in the objection procedure (bezwaarprocedure).
Key provisions are Articles 7:2 and 7:3 GALA. It is established case law that the exceptions
of Article 7:3 shall be administered with reticence.22
Access to a file

22 I should mention that the Act on the modification of administrative procedural law [Wet aanpassing
bestuursprocesrecht] modifies these rules. It will then be possible not to organize a hearing session if the
interested party has declared not to be interested in a hearing or if this party did not respond to the administrative
authoritys request to state his wishes in his respect. This act will enter into force 1 January 2013.

10

Unlike some other European administrative law systems 23 a general right to access to a file in
the decision making procedure does not exist in Dutch administrative law, except for the
procedure to impose an administrative fine (Article 5:49 GALA).24 In practice, upon request
acess will be given, as refusal or reluctance would result in a formal request based upon the
Public Access Act (Wet openbaarheid van bestuur).
4.4 The duty to decide upon application
In Dutch administrative law a great deal of attention is currently being paid to prompt
expedition of procedures. The right of a citizen to expeditious proceedings is generally
recognized and there is also a legal framework of time limits arranged for in various laws.
Unlike other administrative law systems, such as for example the ones in Spain 25 and
Portugal,26 the obligation to decide in Dutch administrative law is limited to individual
decisions upon application. GALA also provides the possibility of addressing a judge to
exhort the administration to make the decisions asked for within this time limit, and the like.
This legal framework was changed rather dramatically recently with the introduction of an
advanced and detailed legal system of time limits, including exceptions to these time limits
(Article 4:13-4:15 GALA), a system of periodic penalty payments to be paid by the
administrative authority to the applicant involved if this authority fails to decide in time
(Articles 4:17-4:20 GALA), a regulation of the positive notional decision (positieve fictieve
beschikking) (Articles 4:20a-4:20f GALA), and a fast and direct appeal to the administrative
court without hearing (Article 8:55b-8:55f GALA) with the power of the court to impose
periodic penalty payments on the administrative authority.
The general regulation on time limits reads as follows:
4:13 1. An individual decision must be given within the time limit prescribed by law or, in the
absence of such time limit, within a reasonable period after an application is received.
2. The reasonable period referred to in paragraph 1 shall in any event be deemed to have expired if
the administrative authority has not given a decision or sent a communication as referred to in
article 4:14.3 within eight weeks of receiving the application.
4:14 1. If an administrative authority is unable to give an individual decision within the time limit
prescribed by law, it shall inform the applicant of this and state a period, which shall be as short as
possible, within which the applicant can expect the decision to be given.
2. Paragraph 1 does not apply if the administrative authority will no longer be competent to take the
decision
after
the
expiry
of
the
time
limit
laid
down
by
law.
3. If in the absence of a statutory time limit the administrative authority is unable to give an
individual decision within eight weeks, it shall inform the applicant of this and state a reasonable
period within which the applicant can expect a decision to be taken
4:15 1. The time limit for giving an individual decision shall be suspended as of the day following
the
day
on
which
an
administrative
authority:

23 See M. Fromont, Droit administratif des tats europens, p. 219.


24 See Oswald Jansen, The Case of the Netherlands, in: Oswald Jansen and Philip Langbroek
(ed.), Defence Rights during Administrative Investigations, Intersentia 2007, p. 302-303
25 Article 42 Ley 30/1992 (Obligacin de resolver)
26 Article 13 CPA (Princpio da deciso).
11

a. invites the applicant to supplement the application pursuant to article 4:5 until the day on which
the application is supplemented or the time limit allowed for this purpose expires without having
been
used.
b. informs the applicant that it has requested a foreign authority to provide information which is
reasonably needed for the decision on the application, until the day on which this information is
received
or
further
delay
is
no
longer
reasonable.
2. The time limit for giving an individual decision shall furthermore be suspended:
a. during a period of postponement to which the applicant has agreed in writing,
b.
as
long
as
the
delay is
attributable
to
the
applicant,
c. as long as the administrative authority is prevented from giving an individual decision due to
force majeure.
3. In the event of force majeure the administrative authority shall inform the applicant as soon as
possible of the fact that the time limit has been suspended, and also within which period the
applicant can expect the decision to be given. 4. If the suspension ends, then in the cases referred
to in subparagraph 1.b, or subparagraphs 2.b and 2.c, the administrative authority shall
communicate this to the applicant as soon as possible, stating the time limit within which the
decision must be given.

I will elaborate on silence of the administration in another contribution to this book.


The requirement ensuing from Article 6 ECHR, both in procedures concerning criminal
charges and civil rights and obligations, for a citizen to have his case dealt with within a
reasonable time directly applies to almost all administrative law. There is detailed and
complicated case law on this subject as well as the well-established and refined decisionmaking practice of the National Ombudsman and comparable complaints commissions. The
administrative courts have developed established and detailed case law which sets out what
should be considered the reasonable period of time for the most common administrative
procedures according to Article 6 ECHR and the different stages within this procedure
(complaints, appeal and higher appeal). If these time limits have not been complied with, the
appellant can claim damages to a fixed amount of 500 for each period of six months that the
reasonable time limit has been exceeded.27 If the procedure involves an administrative fine
instead of a sum in damages, the fine will be decreased by a fixed percentage up to a
maximum amount.28
4.5 The duty to give reasons
One of the functions of administrative investigation is to prepare decisions, for example the
decision to take measures or to impose sanctions. These decisions are orders (besluiten).
According to Article 3:46 GALA, an order must be based upon sound reasons and, as a rule,
these reasons should be stated when the order is notified. This article is part of a general
27 I should mention that these damages do not limit the possibility of obtaining damages on
the basis of the consequences for the person or company involved for having had to wait so
long for a decision.
28 In a few cases concerning competition law fines the CBb applies a reduction of 10- 15%,
and a maximum amount of 10,000 - 15,000 (see CBb 25 March 2011, LJNBQ5977 and
CBb 18 November 2010, LJN BO5193, and Jansen 2011, T&C Mededingingswet, p. 198).
The first conclusion of the advocaat-generaal Widdershoven after the enactment of the legal
basis of this procedure was on this issue. See ECLI:NL:RVS:2013:1586. The decision of the
grand chamber of the Council of State: ABRvS 29 January 2014, ECLI:NL:RVS:2014:188.
12

regulation of stating the reasons for decisions that is set out in Division 3.7 GALA, which
consists of Articles 3:46 to 3:50 GALA. These read as follows:
3:46 A decision must be based on sound reasons.
3:47 1. The reasons must be stated when the decision is notified.
2. Where possible, the provision of law on which the decision is based shall also be stated.
3. If it is impossible, due to the urgency of the matter, to state the reasons for a decision when it is
notified, the administrative authority shall supply them within one week of notification.
4. In that case articles 3:41 to 3:43 apply mutatis mutandis.
3:48 1. There is no need to state reasons if it is reasonable to assume that this is unnecessary. 2. If
an interested party asks within a reasonable time to be informed of the reasons, the administrative
authority shall provide them as soon as possible.
3:49 If an advisory report produced with a view to a decision contains the reasons for the decision
and if it is or has been published, a reference to the report will suffice as statement of the reasons
for the decision or part of the decision.
3:50 If an administrative authority takes a decision that departs from an advisory report issued on
the matter pursuant to a provision of law, this shall be noted in the statement of reasons, giving the
reasons for the departure.

The regulation for stating reasons in GALA is limited to decisions as defined in Article 1:3
GALA. It is generally assumed, though, that in addition to this regulation the unwritten form
of the principle of stating reasons regulates other forms of administrative action. This may be
found, for example, in reports of the National Ombudsman and of comparable complaints
commissions.
GALA contains some specific rules for stating the reasons for decisions imposing sanctions,
that is for imposing enforcement action (last onder bestuursdwang), periodic penalty
payments or an astreinte (last onder dwangsom) and an administrative fine (bestuurlijke
boete), these provisions apply in addition to the general provisions on stating reasons. The
proposed provisions are Articles 5:9 and 5:52 GALA. They read as follows
5:9 The decision to impose an administrative sanction will state the following:
a. the violation as well as the regulation violated;
b. if necessary, an indication as to where and when the violation has taken place
5:52 The decision to impose an administrative fine will state:
a. the name of the violator;
b. the amount of the fine.

The report or the dossier resulting from an administrative investigation should enable
administrative authorities to explain the facts and interests that have led to a decision.
Therefore a breach of the principle of due preparation (zorgvuldig onderzoek)(Article 3.2
GALA) will also lead to a breach of the principle of stating reasons. The reasons stated in the
decision are not only necessary to explain decisions to citizens and the persons concerned but
also for citizens so that they can prepare their defence. Of course, administrative authorities
are not allowed to withhold important facts and reasons.
5. The system of legal protection: a short overview
13

In the Dutch law on administrative procedure, it is the general pattern that someone who
wants to take up arms against a decision must first lodge an objection (bezwaar) with the
administrative authority that has taken the contested decision. After the decision on the
objection (beslissing op bezwaar) has been taken by the administrative authority, appeal
(beroep) can be lodged with the court. The regional courts of first instance are divided into a
number of divisions, for example the criminal division and the administrative division. The
administrative division is responsible for administering administrative law. The judges sitting
on this bench are all independent of authorities and legislation and are members of the
judiciary. Appeals against the judgment of one of these regional courts in the Netherlands can
be lodged with one of the highest administrative judges: the Administrative Jurisdiction
Division of the Council of State, the Central Appeals Tribunal or the Trade and Industry
Appeals Tribunal.29 The choice of which is the highest administrative judge with whom appeal
can be lodged depends on the matter of the appeal.
Since the enactment of the Act on the modification of administrative procedural law [Wet
aanpassing bestuursprocesrecht] on 1 January 2013, an appendix lists the acts that are within
the competence of the Central Appeals Tribunal and the Trade and Industry Tribunal. The
remaining acts automatically fall within the competence of the Council of State. 30 The Central
Appeals Tribunal (Centrale Raad van Beroep) decides on social questions (benefits, pensions
and civil service matters), the Trade and Industry Appeals Tribunal (College van Beroep voor
het bedrijfsleven) on economic administrative matters and the Administrative Jurisdiction
Division (Afdeling bestuursrechtspraak) often on environmental matters and environmental
planning.
Chapters 6, 7 and 8 of the General Administrative Law Act contain the provisions for
administrative procedure. Chapter 6 contains general provisions relating to objections,
administrative appeals and appeals to the administrative courts. Chapter 7 contains provisions
concerning objections and administrative appeals and Chapter 8 outlines appeal to the
administrative courts.31 Almost all of these provisions also apply to appeal to a higher court
(8:108 GALA).
In economic administrative law as in environmental law and environmental planning law
it is often the case that appeal may be lodged directly and in only one instance to the highest
administrative court, contrary to the standard procedure just described. In the case of
economic administrative law, this is the Trade and Industry Appeals Tribunal. The
introduction of administrative fines in economic administrative law meant that the
government wanted to introduce a system of legal protection with two bodies in order to
29It is sufficient here to mention the three most important administrative courts which fit in with the standard
model described. Appeal in tax matters is entrusted to the tax chamber of the Courts of Appeal. The highest
administrative court in tax matters is the tax division of the Netherlands Supreme Court. In the law on traffic
fines, there is also a deviation from standard procedure: there is administrative appeal to the public prosecutor,
appeal to the sub district court and appeal to the Court of Appeal in Leeuwarden. The system of legal protection
against administrative fines imposed by municipalities following infringements relating to nuisance in public
areas [overlast in de openbare ruimte] follows the system of traffic fines. Up until now these last provisions have
no practical relevance at all, as municipalities do not use them.

30 Article 9,10 and 11 of Appendix 2. This Appendix is based upon the new Articles 8:5, 8:7, 8:7, 8:105 and
8:106 GALA.

31This applies for the special procedures mentioned in the previous footnote.
14

comply with Article 15 ICCPR.32 The Competition Act was the first law that brought this
about. The court of first instance in competition law is the Rotterdam court Administrative
Division) in other words the other regional courts are not competent the highest court is
the Trade and Industry Appeals Tribunal.
Under Dutch law, it is the case that the administrative court and not the criminal court
provides legal protection for sanction decisions, including the administrative fine, and it is this
court that is obliged to apply laws of administrative procedure and not of criminal procedure.
Following the requirements of Article 6 ECHR and the GALA regulation ons administrative
fines the administrative courts apply the rights of defence with a criminal nature though.
Recent reforms of administrative procedure
Since 1 April 2013 the 19 former regional courts (rechtbanken) are merged into ten regional
courts. The five former appeal courts [gerechtshoven] were reduced to 4 appeal courts. 33 The
important Act on the alteration of administrative procedural law (Wet aanpassing
bestuursprocesrecht) is the second important legislative reform I should briefly discuss in this
analysis.34 This reform was enacted partly on 1 January 2013, and the remaining part on 1 July
2013.
The last reform consisted of four groups of alterations. The first group consists of changes in
order to to streamline the existing law on administrative procedure [bestuursprocesrecht] and
enhancing the effective and final resolution of administrative law disputes. These alterations
were the following:35

The possibility of taking new or altered decisions into consideration in an


existing administrative procedure are streamlined;
The possibility of passing over shortcomings of an administrative decision
whenever interested parties are not affected were increased;
The provisions on the hearing of interested parties in the procedures following
an objection, an administrative appeal and a complaint were altered;
The important possibility of creating a grand chamber to take important
guiding decisions in the highest administrative courts was introduced, which is
already used in a few cases;
The possibility of delivering independent opinions (het nemen van
onafhankelijke conclusies) in important issues at the administrative courts of
highest instance was introduced, two advocate-generals (staatsraad advocaatgeneraal) were appointed and they already published important opinions
(conclusie);
The possibility of cross-appeal [incidenteel hoger beroep] was introduced;

32Probably needless to say: this system applies for all decisions, not only decisions on fines.
33 See the Wet herziening gerechtelijke kaart, Stb. 2012, 313 as well as the Wet vorming
van dearrondissementen Gelderland en Overijssel, Stb. 2012, 666.

34 Stb. 2012, 682. See also Stb. 2013, 258.


35 See Parliamentary Documents II 2009-2010, 32 450 no. 3, pp. 2-3
15

The administrative courts of highest instance were granted the power to


determine that an administrative decision which has to be taken following its
decision can only be challenged by appeal to itself (excluding the regular
possibility of an appeal to the courts of first instance) (the judicial loop
[judicile lus];

The second group of changes have a more technical character. These changes will have the
effect that the procedural law of the courts of appeal in administrative law will no longer be
provided for in the respective institutional acts. Now GALA provides for the same procedural
law for all administrative courts, both the courts of first instance and the courts of appeal and
highest courts. The third group of changes redistributed the competences of the Council of
State (Raad van State) , the Trade and Industrial Appeals Tribunal (College van Beroep voor
het bedrijfsleven) and the Central Appeals Tribunal (Centrale Raad van Beroep). The fourth
group of changes transfered the provisions required to implement Regulation 2003/1 from the
Competition Act to GALA.36
The last reform which was announced by the government was the integration of the current
Trade and Industrial Appeals Tribunal (College van Beroep voor het bedrijfsleven) into the
Council of State, and the current Central Appeals Tribunal (Centrale Raad van Beroep) into
the four Appeal Courts.37 On 18 December 2014 Dutch government has published the draft
legislation involved to follow a consultation procedure which will last until 15 April 2015.38

36 See Parliamentary Documents II 2009-2010, 32 450 no. 3, pp. 2-3.


37 See parliamentary documents II 2013-2014, nr. 200
38 See the proposed draft of the Act on the splitting of the Council of State and the elimination of the Central
Appeals Tribunal and the Trade and Industrial Appeals Tribunal (Wet splitsing RvS en opheffing CRvB en CBb).
See https://www.internetconsultatie.nl/wetsplitsingraadvanstate.

16

Appendix 1 The structure of the General Administrative Law Act39


CHAPTER 1INTRODUCTORY PROVISIONS
Title 1.1
Definitions and scope
Title 1.2
Implementation of binding decisions of authorities of the European
Communities
CHAPTER 2 DEALINGS BETWEEN INDIVIDUALS AND ADMINISTRATIVE
AUTHORITIES
Division 2.1 General provisions
Division 2.2 Use of Languages in Dealings with Administrative Authorities
Division 2.3 Dealings with Administrative Authorities in an electronic way
CHAPTER 3
Division 3.1
Division 3.2
Division 3.3
Division 3.4
Division 3.5

GENERAL PROVISIONS CONCERNING ORDERS


Introductory provisions
The duty of care and the weighing of interests
Provision of advice
Public preparatory procedure
Interrelated decisions
Paragraph 3.5.1 General provisions
Paragraph 3.5.2 Information
Paragraph 3.5.3 Coordination of decision-making and legal protection
Division 3.6 Notification and communication
Division 3.7 Reasons for orders
CHAPTER 4 SPECIAL PROVISIONS CONCERNING ORDERS
Title 4.1
Administrative decisions
Division 4.1.1 The application
Division 4.1.2 Preparation
Division 4.1.3 Time limit for decisions
Paragraph 4.1.3.1 Time limit for decisions
Paragraph 4.1.3.2
Penalty for failure to give a timely decision
Paragraph 4.1.3.3
Positive notional decision for failure to give a timely decision.
Title 4.2
Subsidies
Division 4.2.1 Introductory provisions
Division 4.2.2 The subsidy ceiling
Division 4.2.3 The granting of subsidies
Division 4.2.4 Obligations of the subsidy recipient
Division 4.2.5 The fixing of the subsidy
Division 4.2.6 Repeal and alteration
Division 4.2.7 Payment and recovery
Division 4.2.8 Subsidies granted per financial year to juristic persons
Paragraph 4.2.8.1 Introductory provisions
Paragraph 4.2.8.2 The application
Paragraph 4.2.8.3 The granting of subsidies
Paragraph 4.2.8.4 Obligations of the subsidy recipient
Paragraph 4.2.8.5 The fixing of subsidy
Title 4.3
Policy rules
Title 4.4 Money debts arising from administrative law
39 This structure is based upon the version of GALA of 1 Augustus 2014.
17

Division 4.4.1 Setting and substance of the obligation to pay


Division 4.4.2 Default and statutory interest
Division 4.4.3 Statutory limitation
Division 4.4.4 Due notice and collection by writ of execution
Division 4.4.5 Objection and appeal
Title 4.5 Compensation
CHAPTER 5 ENFORCEMENT
Title 5.1
Introductory provisions
Title 5.2
Supervision of observance
Title 5.3 Remedial sanctions
Division 5.3.1 Enforcement action
Division 5.3.2 Astreinte
Title 5.4 Administrative fine
Division 5.4.1 General provisions
Division 5.4.2 The procedure
CHAPTER 6 GENERAL PROVISIONS CONCERNING OBJECTIONS AND APPEALS
Division 6.1 Introductory provisions
Division 6.2 Other general provisions
CHAPTER 7 SPECIAL PROVISIONS CONCERNING OBJECTIONS AND
ADMINISTRATIVE APPEALS
Division 7.1 Notice of objection preceding appeal to an administrative court
Division 7.2 Special provisions on objections
Division 7.3 Special provisions on administrative appeals
CHAPTER 8 SPECIAL PROVISIONS CONCERNING THE PROCEDURE IN APPEAL
TO THE DISTRICT COURT AND HIGHER APPEAL
Title 8.1
General provisions on appeals in first instance
Division 8.1.1 Jurisdiction
Division 8.1.2 Proceedings by a single-judge, a three-judge section or the grand chamber
Division 8.1.2A Opinion
Division 8.1.3 Referral, consolidation and separation
Division 8.1.4 Challenge and excusal
Division 8.1.5 The parties
Division 8.1.6 Witnesses, experts and interpreters
Division 8.1.7 Sending of documents
Title 8.2
The hearing of appeals in first instance
Division 8.2.1 Registry fee
Division 8.2.1a General provision
Division 8.2.2 Preliminary inquiry
Division 8.2.3 Expedited proceedings
Division 8.2.4 Simplified proceedings
Division 8.2.4a Appeal against failure to give a timely decision
Division 8.2.5 Hearing
Division 8.2.6 Judgment
Division 8.2.7 Interlocutory ruling
Title 8.3
Provisional remedies and immediate judgment in the proceedings on the merits
18

Title 8.4 Compensation in damages


Title 8.5 Higher appeal
Title 8.6 Review
CHAPTER 9 DEALING WITH COMPLAINTS
Title 9.1 Dealing with notifications of complaint by an administrative authority
Division 9.1.1 General provisions
Division 9.1.2 The dealing with notifications of complaint
Division 9.1.3 Additional provisions for a complaints procedure
Title 9.2 Dealing with notifications of complaint by an Ombudsman
Division 9.2.1 General provisions
Division 9.2.2 Competence
Division 9.2.3 Procedure
CHAPTER 10
PROVISIONS ON ADMINISTRATIVE AUTHORITIES
Title 10.1
Mandate, delegation and attribution
Division 10.1.1
Mandate
Division 10.1.2
Delegation
Division 10.1.3
Attribution
Title 10.2
Supervision of administrative authorities
Division 10.2.1
Approval
Division 10.2.2
Annulment
Division 10.2.3
Stay
CHAPTER 11 FINAL PROVISIONS
Appendix 1: Regulation on direct appeal
Appendix 2: Regulation of jurisdiction of administrative courts
Chapter 1: Order excluded from appeal
Chapter 2: Appeal in first instance to a special administrative court
Chapter 3: Appeal in first instance to another court
Chapter 4: Higher Appeal
Appendix 3: Reduced registry fee arrangement

19

Appendix II The Dutch system of legal protection40

40 This is an updated copy of the schedule published in: Oswald Jansen (ed.), Administrative
Sanctions in the European Union, Intersentia, Cambridge/Antwerp 2013, p.465.
20

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