Introduction
Facts
Decision
Comment


Introduction

Once a decision of an administrative authority has been issued, an administrative appeal can be filed. The appeal must be addressed to a higher administrative authority with the aim of annulling, amending or repealing the contested decision. The administrative appeal precedes a judicial procedure and can resolve issues between a party and the administration without judicial involvement. In this regard, the judiciary has no competence to judge policy issues, whereas an administrative authority is not bound by this restriction. However, the final decision of a public administrative authority has no legal force, unlike a final court judgment.

Administrative authorities have broad competence in assessing administrative appeals. The so-called 'devolutieve werking' (assessment of a case in its entirety) of an administrative appeal implies that the appeal body must take into account both the factual circumstances and the applicable legal rules, and that it is competent to tackle legal issues as well as questions of feasibility. The outcome of the administrative appeal is considered a new decision which supersedes the first-instance decision.

However, the appeal body's broad competence is not always clear cut. Until now, neither legal doctrine nor jurisprudence successfully tackled the question of how far this broad competence over administrative appeals can be stretched. As administrative authorities are meant to assess the contested decision in its entirety, it was unclear whether they could also look into aspects of the original decision that were not originally disputed.

A February 13 2014 Council of State judgment, which was initiated by Naska Ingredients plc and Aquanova plc (nr 226.405) and concerned the appeal of a provincial council's refusal to grant an environmental permit, has finally shed some light on this delicate issue.

Facts

The Limburg Provincial Council granted an environmental permit to the municipality of Maasmechelen for the exploitation of three wind turbines at the Schipperstraat, but refused to grant an environmental permit for the exploitation of two wind turbines at Heylakker, also in Maasmechelen.

The municipality of Maasmechelen therefore appealed the refusal to grant permits for the wind turbines at Heylakker to the Flemish Region. The competent minister declared the appeal unfounded, confirmed the decision of the Limburg Provincial Council and added an additional permit condition with regard to the first three wind turbines at the Schipperstraat.

During the procedure, it was stated that the appellant had appealed only the refusal to grant an environmental permit for the fourth and fifth wind turbines at Heylakker, while the Flemish Region also assessed the permit for the three approved wind turbines. Thus, the Flemish Region allegedly exceeded its competence.

Decision

In its final judgment, the Council of State emphasised that the devolutieve werking of an administrative appeal implies that the appeal body assesses the permit application with regard to both its legality and feasibility, without being bound by the motivation set out in the contested decision or by the arguments developed during the appeal procedure – but only with respect to the part of the permit which was the subject of the appeal. The appeal body cannot issue a final judgment on any part of the application for which it was not seized. The part of the original decision which was not appealed is thus definitive and cannot be changed by the appeal body.

Where the appeal body is of the opinion that the subject of the appeal cannot be separated from the activities which were permitted in the first phase of the procedure, it must declare the appeal inadmissible.

Comment

This Council of State judgment clearly shows that although the competence of administrative authorities when assessing administrative appeals is broad, certain limitations must still be respected. The administrative authority can assess both the legality and feasibility aspects of the contested decision, but it must confine its judgment to the aspects of the decision which were actually contested. If certain aspects are not disputed, no amendments can be made in the context of the administrative appeal.

For further information on this topic please contact Dominique Devos at DLA Piper UK LLP by telephone (+32 2 500 1500), fax (+32 2 500 1600) or email (dominique.devos@dlapiper.com). The DLA Piper website can be accessed at www.dlapiper.com.