On 14 July 2017, mr. B.J. van Ettekoven, chair of the Administrative Jurisdiction Division of the Dutch Council of State (‘the Administrative Jurisdiction Division’) asked the Advocate-General of the Dutch Council of State, mr. R.J.G.M. Widdershoven, to issue his opinion on the intrusiveness with which the administrative court should review generally binding provisions (algemeen verbindende voorschriften or ‘AVVs’) in relation to higher law and what factors are important in that respect. On 22 December last, an extensive opinion was issued. That opinion offers us rules of thumb for conducting exceptive reviews of AAVs in relation to material as well as formal legal principles and also signals the end of the 'discretionary review’ that had been applied since the Landbouwvliegers judgment was rendered in 1986.

Exceptive review

In the case of an appeal filed against a decision, ‘exceptive review’ is where the administrative court reviews whether the statutory provisions on which that decision is based is in line with higher law or general legal principles. Thus, exceptive review does not involve a direct appeal against an AVV; it is an indirect review of an AVV not issued by the formal legislature (in other words: not an 'act in the formal sense', such as the Dutch Environmental Management Act (Wet milieubeheer) or the Dutch Media Act 2008 (Mediawet 2008)) by means of a decision open to objection. If the court rules that an AVV is contrary to a higher law or general legal principles, this could result in the AVV being inapplicable or non-binding and could lead to the appealed decision being set aside. As such, exceptive reviews are a way of getting the administrative court to issue its view on the lawfulness of AVVs despite the fact that section 8:3(1) of the General Administrative Law Act (‘GALA’) (Algemene wet bestuursrecht) rules out the possibility of appealing against AVVs.

Background

This topic played a role in various administrative law cases in which the Administrative Jurisdiction Division had to render judgments. However, the direct reason for presenting the questions to the Advocate-General of the Dutch Council of State was two cases concerning decisions of the Municipality of Purmerend concerning the sale of LPG at filling stations which had been taken based on an AVV (in the case at hand a ministerial regulation). The appellant, who lived 125 metres from an LPG filling station, considered the sale of LPG at altered, closer distances to vulnerable objects, such as houses, to be irresponsible (i.e., contrary to the general principle of due care, as well as other general principles). She was furthermore of the opinion that the ministerial regulation in question should not have been applied as it contravened a European directive (i.e., contravened higher law). According to 'Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods’, the safety measures in the form of LPG being supplied by road tankers equipped with heat-resistant cladding and improved filling hoses, the presumed presence of which formed the basis for reducing the distance between LPG filling stations and vulnerable objects, were not permitted. Since that argument affected the binding/non-binding nature of the underlying statutory regulation and consequently the doctrine of exceptive review, an application was submitted requesting that an opinion be rendered concerning a variety of questions of law for the benefit of the development of the law.

Questions posed

The Administrative Jurisdiction Division’s chair (Van Ettekoven) asked the Advocate-General of the Dutch Council of State (Widdershoven) whether a ministerial regulation can be declared non-binding on account that it contravenes unwritten law, for example where the substantiation of the regulation was potentially unsound or where the investigation underlying the regulation may have not have been conducted with due care. If that was the case, Van Ettekoven also wished to know whether other circumstances were important in that respect, such as acting contrary to European law. He also asked to what extent the administrative court must review an AVV and what circumstances were decisive in that regard. Given the difference in democratic legitimacy, Van Ettekoven furthermore wished to know whether it mattered that the case at hand concerned a ministerial regulation rather than a regulation adopted by a popular representation body.

Substance of the opinion

In answer to the first question – exceptive review in relation to legal principles – Widdershoven opined that administrative courts must subject an AVV to an exceptive review in relation to material as well as formal general legal principles. The material general legal principles that are eligible for exceptive review are the principle of equality, the prohibition on retroactivity as part of the principle of legal certainty, the principle of legitimate expectations and the principle of proportionality (section 3:4(2) GALA). The objective/result assessment prescribed by the latter principle requires administrative courts to give more structure by applying the three-step assessment developed in case law of the Court of Justice to suitability, necessity and balance, which also makes that assessment more predictable.

The formal general legal principles that are eligible for exceptive review are the principle that different interests must be weighed against each other (section 3:4(1) GALA), the principle of careful preparation or the formal principle of due care (section 3:2 GALA) and the principle of known and sound substantiation. The formal principle of duty of care involves a duty on the part of the legislature to investigate matters. The purpose of that investigation is to gather information about the relevant facts and the interests that are to be weighed, in which respect it is a plus if the material legislature hears interested parties affected by the AVV in one way or another and takes that information into account visibly and seriously when adopting the regulation. An AVV need not be substantiated, either in full or in part, when it is adopted (section 3:1(1)(b) GALA). The substantiation may be supplemented later on in the procedure, provided that other parties can still effectively defend themselves against such supplement.

Administrative courts must in fact disregard an AVV or declare it non-binding where it is evident that it is contrary to a general legal principle. In that regard, the ‘discretion sluice’ that has been applied by courts since 1986 following the Landbouwvliegers judgment (also known as the Sproeivliegtuigen judgment) may be abandoned. That judgment, in which it was established that the case involved discretion, held that lower law may be reviewed in relation to general legal principles, as long as some caution is exercised.

With regard to the second question, Van Ettekoven wanted to know whether other circumstances were also important, for example acting contrary to European law.

On that subject Widdershoven has stated that, as a rule, administrative bodies have the power and are obliged to review the AVVs they apply in relation to higher law and to disregard them if they contravene higher law. This power concerns the review in relation to all binding provisions of international law as well as higher national law, including the general legal principles. This power of review cannot be applied if the violation of the higher law does not ensue from a decision to be taken by the administrative body but from third-party acts, and if in a specific case objections of a constitutional nature exist against the administrative power of review.

In addition, the Administrative Jurisdiction Division’s chair queried to what extent the administrative court must review an AVV and what circumstances were the determining factors in that respect. The answer is that the administrative court’s review in relation to the material principle of proportionality (section 3:4(2) GALA) is cautious if when adopting an AVV the body had an extensive margin of discretion on account of the factual or technical complexity of the subject, or if that decision involves political considerations. In the latter case, it is not the court’s duty to determine the value of the societal weight attributed to the interests concerned at its own discretion.

The court is, however, at liberty to review the manner in which the margin of discretion is given shape in relation to section 3:2 GALA and the principle of sound substantiation.

The material review and the review in relation to section 3:2 GALA and the duty to provide substantiation become more intensive as the regulation has more impact on citizens’ lives and fundamental rights are at issue. Where the material legislature has expressly and properly weighed the negative implications that an AVV has for a particular group, this choice satisfies section 3:2 GALA and the duty to provide substantiation. In that case the court can only assess whether the AVV contravenes the principle of proportionality within the meaning of section 3:4(2) GALA.

The final question was whether, given the difference in democratic legitimacy, it made any difference that the case at hand concerned a ministerial regulation rather than a regulation adopted by a popular representation body. Widdershoven asserted that the fact that an AVV has been adopted by a directly elected body, such as the municipal council or the provincial council, does not constitute reason to fundamentally approach the regulation differently than other regulations in terms of judicial review. However, this fact can play a role in the specific review in relation to section 3:2 GALA and section 3:4(2) GALA.

Contribution to a broader development of law

Widdershoven’s opinion ties in well with the discussion held the past year in the preliminary advice given by the Dutch Administrative Law Association (VAR). The core of the argument put forward by Prof. mr. W.J.M. Voermans in his preliminary advice entitled 'Besturen met regels volgens de regels’ is that we live in an era where the government is making more and more use of administrative law and policy rules in giving shape to it societal role, resulting in the democratic control on the formation and substance of said law and rules being less strong than desired. That would upset the balance in the trias politica, the separation of power between the legislature, the judiciary and the executive powers, and the administration would become overly powerful. It is in part for that reason that it is important that it becomes possible to file an appeal with the administrative court against AVVs and policy rules. In his preliminary advice entitled ‘Rechtsbescherming tegen algemene regels: tijd om de Awb te voltooien’ Prof. mr. R.J.B. Schutgens advocated that, among other things, citizens should no longer have to wait until a general regulation has manifested in a decision in respect of which they are interested parties, but that they must instead acquire a direct right of appeal when they are able to make a plausible case that a general regulation has an immediate negative impact on them or will have a negative impact in the near future, which can be prevented by the appeal. However, for that to be the case, the scope of the term ‘interested party’ must be expanded: in the ‘OPERA’ criteria, i.e. the criteria that must be met in order to qualify as an interested party, the P (the requirement concerning personal interest) and the A (the requirement concerning an actual interest) must be broadened. Although we have not yet reached that stage, this opinion has paved the way for administrative law to move in the direction advocated in these preliminary pieces of advice.

Next steps

Although Widdershoven’s opinion caries a lot of authority, it is non-binding. After the parties to the proceedings have had the opportunity to respond to this opinion, the two cases at hand will be presented to the Administrative Jurisdiction Division’s Grand Chamber, which will render binding decisions within several months.